After rejected requests on Edinburgh PFI deal details, economists say FoI system “lacks any teeth”

Caitlin Logan

Edinburgh City Council has said commercial interest outweighs public interest on hazardous PFI schools

EDINBURGH CITY COUNCIL has rejected a fresh Freedom of Information (FoI) request for sight of the contract and financial model in the now infamous Private Finance Initiative (PFI) deals made on the faulty construction of Edinburgh schools, citing a risk of prejudicing “commercial interests”.

Economists Margaret Cuthbert and Jim Cuthbert, who requested the information in 2016, renewed their request this autumn when the legal 15 year limit on release of historical records had been reached. Facing rejection, the Cuthberts have said the case proves the FoI system needs to change, and raises questions over what the council is hiding.

The Cuthberts stated: “The present Freedom of Information system in Scotland lacks any teeth with regard to helping the public get to grips with public procurement in Scotland. Researchers and journalists alike have been stymied by point blank refusal by authorities to reveal contracts and financial projections of public sector procurement projects. 

READ MORE: Jim and Margaret Cuthbert: The mysterious tale of Edinburgh City Council and the shoddy PFI schools

“There is a fundamental need to improve the terms of Freedom of Information. And for public procurement projects, the time period during which information can be withheld should be drastically shortened.

“Unless changes are made in the FoI system, public bodies will continue to put up a smokescreen hiding the commitments they have made with private sector organisations, in construction and in finance.

“This situation is likely to get worse as public sector budgets are cut, but the authorities are obliged to continue making the PFI payments as first call on their budgets.”

Private Finance Initiatives (PFI) are a way of creating Public Private Partnerships, through which private companies are contracted for public projects.

In Edinburgh, PFIs were used to develop 17 new or refurbished schools between 2002 and 2005, which led to significant controversy when the external wall of one of the schools collapsed last year and further investigation revealed structural problems with a number of the other schools.

READ MORE: Journalists unite with open letter damning Scottish Government handling of FoI requests

Edinburgh City Council responded to an FoI request on the contract and financial details of the procurement deal by citing an exception of legitimate economic interest, which allows them to withhold the information despite the 15 year time period having passed.

The council’s response explained: “This exception applies to information where disclosure would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information where confidentiality is provided for to protect a legitimate economic interest.

“If this information were to be disclosed in response to this request this would be likely to prejudice substantially the commercial interests of the council and its partners.”

The letter added: “In all the circumstances, the public interest in making the information available is outweighed by the commercial and confidentiality considerations which weigh in favour of non-disclosure.”

Jim and Margaret Cuthbert remain concerned by the council’s decision to reject the request, stating: “Despite clear deficiencies in the school buildings and the horrific consequences that could have ensued from them, the council appears determined to keep the information secret for as long as it possibly can. Maintaining secrecy like this actually does the council no favours.”

READ MORE: Scottish PPP/PFI deals have the worst track record of all countries in the UK, says new report

The Cuthberts asked: “What secrecy does is to raise the natural response: has the council something to hide? Alternatively, is the council’s stance a result of signing a contract to maintain the commercial confidentiality of its private partners? And what right had it to do that when it is we the public who are paying?”

The pair also raised concerns over the inadequacy of the inquiry which Edinburgh City Council commissioned into the incident, arguing that it failed to answer key questions on the funding method and the assessment of risk transfer.

Asked whether Edinburgh City Council was, as suggested, prioritising commercial interests over public interest and safety, a council spokesperson told CommonSpace:  “Our overriding priority is always the safety of our pupils and staff.

“That is why we took the unprecedented step to close 17 schools last year and ensure remedial work was carried out to address the construction issues.

“Publishing the full contract and financial model could substantially prejudice the commercial interests of the council and its partners, particularly whilst matters remain under legal consideration.”

Picture courtesy of kaysgeog

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