------ Original Message ------
To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Sent: Friday, 15 Jan, 2021 At 10:15
Subject: Fwd: Freedom of Information(FOI) Request - 101002383630 Heron Bros Compensation

Hi Graeme/Craig

Best wishes for 2021 and hope you are keeping well.

Can you confirm that this FOI request is being processed by the relevant department and when a response is expected.

Thanks


Sent: 19 January 2021 17:04
To: Geddes, Craig < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >; Maxwell, Graeme < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Subject: Re: Fwd: Freedom of Information(FOI) Request - 101002383630 Heron Bros Compensation

Hi Graeme/Craig

Would appreciate courtesy of acknowledgement.

Thanks


------ Original Message ------
From: "Maxwell, Graeme" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Sent: Wednesday, 20 Jan, 2021 At 09:58
Subject: RE: Fwd: Freedom of Information(FOI) Request - 101002383630 Heron Bros Compensation

This was passed to the relevant department. I had asked them to get back you asap. I will chase them up again and they will respond to you direct.

Many thanks
Graeme
Graeme Maxwell
Senior Business Support Assistant
Chief Executive’s Office

------ Original Message ------
From: "EN EnvFoi" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Sent: Wednesday, 20 Jan, 2021 At 14:14
Subject: FOI's

I would confirm that the Environment Department are in receipt of the attached FOI’s that you have recently submitted.

2383630
2384365
2384369
2385153

The Director of Environment is currently working on the responses but please be advised that due to the evolving nature of the COVID-19 pandemic we are working hard to ensure that resources are focused on delivering and supporting essential services.

We appreciate your cooperation and patience during this unprecedented situation.

If you require an further information at this time, please email

This e-mail address is being protected from spambots. You need JavaScript enabled to view it

with the reference numbers above.

Yours sincerely
Tracey Morgan
Customer Relations Officer
Environment Department

------ Original Message ------
To: "EN EnvFoi" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Sent: Wednesday, 20 Jan, 2021 At 15:21
Subject: Re: FOI's

Hi Tracey

Thanks for this.

You do have my cooperation and I do fully appreciate the consequences the COVID-19 pandemic is having on Council workers and services, and on everyone else who is working hard, and have to deal with shielding, self-isolating, caring for elderly relatives, not seeing close family members or coping with family bereavement.

Covid-19 continues to affect everyone and everyone is working hard to overcome the effects of this pandemic.

Thanks


Sent: 26 January 2021 09:14
To: EN EnvFoi < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Subject: Re: FOI's 2383630 2384365 2384369 2385153

Hi Tracy

Unfortunately, you did not give an indication as to when the FOIs would be answered.

As it will be 30 Working days on Wednesday 27/1/2021 since first FOI was 'recently submitted' on 10/12/2020 and as a high interest in these subjects/matters would have been anticipated by the Director of Environment

'Published The Extra On Line -
News
People
Nurseries costs in East Renfrewshire criticised
A decision to pay more than £800,000 in compensation to a company building new nurseries in East Renfrewshire has been blasted by opposition councillors.'

Would appreciate if a response can be given by 28/1/2021.

Otherwise, I feel I have no option but to seek review from ERC Chief Officer (Legal and Procurement).

Thanks

------ Original Message ------
From: "EN EnvFoi" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Sent: Tuesday, 26 Jan, 2021 At 11:20
Subject: RE: FOI's 2383630 2384365 2384369 2385153

Thank you for your attached email.

I have passed this to the Director for an update and will reply to you as soon as I have any information on the responses.

Thanks
Tracey

------ Original Message ------
To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Cc: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Sent: Thursday, 28 Jan, 2021 At 16:36
Subject: Freedom of Information(FOI) Review Request - 101002383630 Heron Bros Compensation plus 2384365 ,2384369 , 2385153

Chief Officer (Legal and Procurement)
Council Headquarters
Rouken Glen Road
Giffnock
G46 6UG

REQUEST FOR FOI REVIEW

I wish to request FOI review for the following FOI requests(attached to email) -

2383630 - 10/12/2020
2384365 - 13/12/2020
2384369 - 13/12/2020
2385153 - 16/12/2020

as it is now 27/30 working days since the FOI requests were made and

as Gerry Mahon, The Chief Officer Legal & Procurement, has previously stated that FoI is normally a 2 stage process -

'As you will be aware the Council's response to an FOI request does not merely revolve around the initial request but also the review process. It is hoped that any human error in relation to the 1st part of the process is properly remedied at the 2nd stage.'

and The Scottish Information Commissioner has written -


'The duty to advise and assist

Under FOI law, authorities have a duty to advise and assist people who want to access their information. The duty to advise and assist makes sure that customer service and customer engagement are central to FOI practice.
Taking a positive and proactive approach to the duty to advise and assist will strengthen relations with service users and help build trust. Offering help, support and guidance to people looking for information will also reduce the likelihood of more FOI requests.
Legal requirement
The FOI Act requires authorities to provide reasonable advice and assistance to people who have made, or are planning to make, a request for information (section 15).
The EIRs contain a similar provision for requests for environmental information (regulation 9).
Both the FOI Act and the EIRs say that authorities which comply with the Scottish Ministers' FOI Code of Practice when providing advice and assistance are complying with the duty under FOI law.'

I wish to request FOI review.

We all appreciate the consequences the pandemic is having on Council workers and services, and on everyone else who is working hard, and have to deal with loss of earnings, shielding, self-isolating, caring for elderly relatives, not seeing close family members or coping with bereavement after losing family members to Covid -19.

Covid-19 continues to affect everyone and everyone is working hard to overcome the effects of this pandemic.

The Department refer to these FOIs as 'recently submitted' but the requests were made between 10 - 16 December 2020.

The Department has had my cooperation and patience and 27/30 working days have elapsed.

In the spirit of this cooperation I would have expected at least an indication from the Department of a date when a response could be expected.

As you can see from attached emails below no indication has been given as to a date when a response can be expected.

Again, I have shown patience and in the spirit of cooperation I would have looked at and considered any reasonable timescale/date if it had been given.

However, I now feel that the Department are making up their own open ended timescale with no indication of a date when a response can be expected and as the stipulated 20 working days for response have been exceeded (27/30) working days, I feel I have been left with no option but to seek FOI Review from ERC Chief Officer (Legal and Procurement).

As the Department have gathered these FOIs together, would appreciate if you can confirm that the 4 x FOIs can be dealt with within this 1 x Review Request.

Thanks

50 Working days since FOI request on 10/12/2020

Still no response from ERC.

FOI Review Response Received.

Open & Transparent?

++++++++
NOT EVEN ONE DOCUMENT/REPORT/EMAIL PROVIDED !!!!
++++++++

++++++++
APPEAL TO SCOTTISH INFORMATION COMMISSIONER HAS BEEN COMPILED AND SENT
++++++++


------ Original Message ------
From: "Mahon, Gerry" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Sent: Thursday, 25 Feb, 2021 At 15:31
Subject: FOI Review - Heron Bros 101002383630


I refer to the above, to your request of 10 December 2020 regarding information in connection with Heron Bros compensation and to your request for review received on 28th January 2021 following the Council’s failure to respond within statutory timescales.

As you are aware, I have responsibility within the Council for dealing with reviews under the Freedom of Information and Environmental Information regimes and can advise that I have now concluded consideration of this case.

In the first instance I would offer my sincere apologies on behalf of the Council for the failure to respond to the initial request within appropriate timeframes.

The department concerned is significantly affected by COVID response work at the present time and this has hampered the availability of staff to conduct relevant searches etc but I accept that it would have been appropriate to advise you of any expected delays and confirm a firm date by which you could have expected a response.

Turning to the substance of your request, I note that you ask certain questions which are not the subject of recorded information as such but for which I can supply answers in the spirit of assistance:-

Details of who provided legal advice

– The Council’s internal Legal Service

The cost of this legal advice

– nil; this is an internal provision which is cost neutral to the council

Details of who provided the advice that ERC could face a potentially costly legal dispute

– as above

General details of why ERC could face a potentially costly legal dispute and what this potential costly legal dispute would involve

– Current construction contracts provide for compensation events which in certain circumstances variously entitle parties to further payment/withholding of payment/ delayed performance of obligations etc.
- There is no specific reference to Covid and its impact in the contractual documentation which governs parties entitlements in this matter as COVID was not known of at the time the contract was entered into.
- As such, in the absence of negotiated agreement between the parties, the ultimate determination of rights and liabilities in terms of the contract would lie with the courts.
- In the absence of precedent there is no guarantee that the Council could successfully argue that a compensation payment is not due and it may therefore face not only the full compensation bill but also the time and cost of processing the case together with the expenses of the successful party.


the potential cost of this potentially costly legal dispute

– impossible to definitively say; various factors including what is sued for by the party, the length of any hearing required to adjudicate, the court in which it is pursued, the use of Counsel and obviously whether the party is successful or otherwise will all impact on cost.


Other information sought in terms of your request is held but is considered exempt from disclosure in terms of the Freedom of Information (Scotland) Act 2002.

Communications between the Council and its various officers and agents in this regard was undertaken in respect of a contract which is still live and subject to ongoing performance by the contractor.

It therefore would be contrary to the Council’s commercial interests to disclose its internal consideration of the pros and cons of this matter to the public and sight the contractor and indeed any others engaged in construction work on behalf of the Council on matters which may encourage them to make additional claims on this or other similar contracts resulting in further financial liability.

I would therefore indicate that material is withheld on the basis of s33(1)(b) of the Act, namely that it would be to the substantial prejudice of the Council’s commercial interests if it was released.

This exemption is subject to the public interest test.

I am satisfied that the wider public interest in overall protection of the public purse outweighs the interest in disclosure of the information sought.

If further claims are encouraged by disclosure of the Council’s consideration of its overall position they may not be capable of being settled on terms as advantageous as those obtained and previously reported upon.

This in turn will likely create greater liability and stress on Council budgets which in turn impacts on local taxation and/or quality and scope of services.

The public are in any event considered to be sufficiently sighted on the overall expenditure on the matter as evidenced by the report which prompted this request.

Communication between the Council and the contractor involved is also considered to be legitimately withheld on the basis of the same section, although in this case it is also the contractor’s own commercial interests which are considered to be prejudiced by release.

The disclosure of information which may allow competitors to assess the firm’s vulnerability in light of the pressures brought about by COVID and the various restrictions following on from it and bid accordingly for future contracts will in my opinion seriously impact on Heron Bros ability to successfully tender for those opportunities and provide rivals with intelligence which may give them an advantage in an already pressured marketplace.

Again, the public interest is to my mind better served by stimulating competition amongst tenderers which in turn drives down prices and provides better value for money to the public purse.

Disadvantaging a specific contractor merely serves to shrink the competition to the ultimate disadvantage of the buyer.

This concludes the review process. If you are dissatisfied with the outcome of this review, you have the right to appeal to the Scottish Information Commissioner. His address is:

Scottish Information Commissioner
Kinburn Castle
St. Andrews

Yours sincerely
Gerry Mahon
Chief officer – Legal and Procurement

To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Sent: Friday, 12 Mar, 2021 At 11:29
Subject: Freedom of Information(FOI) Appeal - East Renfrewshire Council(ERC) FOI Ref: 101002383630 Heron Bros Compensation

Scottish Information Commissioner
Kinburn Castle,
St Andrews, Fife KY16 9DS

Dear Sir

Contact Details..........................-

Reason for Appeal and Background details -

I am writing as instructed by Gerry Mahon, Chief Officer - Legal and Procurement, Legal Services, East Renfrewshire Council(ERC) HQ, Giffnock, G46 6UG in his email of 25 February 2021, to appeal the decision by him to withhold the recorded information requested from East Renfrewshire Council by FoI.

My Freedom of Information(FoI) request was made to East Renfrewshire Council (ERC).

The FOI request was made in regard to details contained in the Report by Director of Environment - EARLY LEARNING AND CHILDCARE (Expansion 2020) Dated December 2020, presented to East Renfrewshire Council(ERC) Cabinet Committee on 3 December 2020.

ERC were asked to provide all recorded information concerning the report.

I am making this application on behalf of myself.

My preferred method of contact is by e-mail.

As the email is large any information not included in the email is included in the attached document.

Timetable of events........................

I have attached copies of all the above correspondence to this email/appeal in the attached document.

I disagree with Mr Mahon and ERC regarding their reasons for withholding the requested information and I request that my appeal take the following into consideration -

I did not receive any of the requested information from ERC within the 20 working days statuary timescale.

As a result I had no option but to seek a review.

It took 50 working days to arrive at the conclusion that NOT EVEN ONE document/report/email would be provided.

When presenting the report to Cabinet the Director of Environment emphasised and highlighted that


‘It’s really complicated’

and

‘Staff may not have followed the rules exactly’


I would opinion that the Director of Environment is stressing to Councillors that they will have difficulty understanding the report.


The FOI is requesting information to break down and simplify the report to enable understanding of these complexities regarding the compensation payment of £803,000 to be made to Heron Bros.


I would request all documents/reports/emails be provided regarding the rules not followed to be provided.


To do this, the requested further information held by ERC is required.


It is difficult to believe that there are NO documents/reports/emails that can be provided.


There appears to be a problem here in that this money was committed by the Director of Environment without any council approval, permission or consent.


- The Director of Environment had already approved and committed Council Tax Payers money without any council approval, permission or consent.

- Another point that seems to have been ignored is that no Director can authorise any excess of £10k without the authority of the full council.


I find it hard to believe that there are no Documents/Reports/Emails that can be released regarding any of the above.


If you’re using FOI to ask questions about public services involving private companies it’s quite common to be refused on the basis of ‘commercial sensitivity‘ .


These exemptions are often misused by authorities as a ‘catch-all’ reason to fob off a requester.


Beyond quoting the exemption the authority should be able to explain in more detail why that exemption outweighs any public interest test.


I would opinion on the use of exemptions on 'commercial sensitivity'


- not only does the authority need to justify their decision but it doesn’t have to be applied to the whole document(s).

Firstly, I would ask Mr Mahon/ERC to provide the documentation underlying their decision to apply this exemption: what was the nature of the information and how was it commercially sensitive? Whose interests are prejudiced?


Secondly, this should identify any information that might not be commercially sensitive. Is the name of any report commercially sensitive? Its authors? Its table of contents?



However it would appear ERC - ‘strive to implement the Act in a way which does not adversely affect the commercial interests of third parties.’


as seen when seeking tenders -


‘MINI-COMPETITION

Mini Competition – East Renfrewshire Council COVID-19 Transport Response Measures; Spaces for People Operational Planning & Delivery Support

Using Scotland Excel Engineering & Consultancy Framework Ref:06/16– Lot 2
MC REF: MC 20 21 038
CLOSING DATE: 12 noon, Friday 6th November 2020
SUPPLIER NAME:
LATE RESPONSES WILL NOT BE CONSIDERED
All change requests (2 week response) should be emailed to the process owner: Debbie Hill, Chief Procurement Officer: This e-mail address is being protected from spambots. You need JavaScript enabled to view it Version 1.1 June 2018 / Revision Date: January 2020

Freedom of Information Scotland Act (2002)

This Act imposes obligations on Scottish public authorities, including all Scottish local authorities, and establishes a public right of access to all recorded information of any age held by any public authority subject to certain conditions and exemptions. It is important therefore that potential tenderers understand that if they wish to submit a tender and be considered for the award of a contract with a public authority, including a local authority, the terms of that tender may require to be disclosed under this legislation if an information request is received.

As a general rule, local authorities will require to comply with an information request, which may involve disclosure of the contents of tender’s submitted by third parties. The Act provides for certain exemptions, however, and these will be considered on a case by case basis before a decision is reached as to whether information should be disclosed.

When entering into contracts East Renfrewshire Council will not accept clauses which seek to exclude any part of the contract or information contained within the contract from the terms of the Freedom of Information (Scotland) Act 2002. In addition, the Council will not accept a clause which requires that it treats some or all of the information contained within the contract as confidential.

The Council would wish to stress to potential tenderers, however, that, whilst committed to the principles of openness and transparency promoted by the Act, it will strive to implement the Act in a way which does not adversely affect the commercial interests of third parties.’



In the interests of openness and transparency ERC are asked to give details of processes, procedures and methods implemented regarding this


- ‘strive to implement the Act in a way which does not adversely affect the commercial interests of third parties.’


How did ERC carry this out?

What did this ‘strive’ consist of?

What procedures/processes were involved?

Did ERC ‘strive’ impartially?

Why is ERC not ‘striving’ to give the Applicant the requested information held?


Mr Mahon/ERC say -


‘I note that you ask certain questions which are not the subject of recorded information as such but for which I can supply answers in the spirit of assistance:-’

I asked for ‘details’ which would include information/documents/reports/emails as qualified by further reference in request -

Please provide all information/reports/documents/meeting notes/minutes held regarding above including all correspondence/emails to/from/between……….

I would have expected and still require all information/reports/documents/emails etc relevant to the answers given below.


Details of who provided legal advice

– The Council’s internal Legal Service


The cost of this legal advice

– nil; this is an internal provision which is cost neutral to the council


Details of who provided the advice that ERC could face a potentially costly legal dispute

– as above


General details of why ERC could face a potentially costly legal dispute and what this potential costly legal dispute would involve

– Current construction contracts provide for compensation events which in certain circumstances variously entitle parties to further payment/withholding of payment/ delayed performance of obligations etc. There is no specific reference to Covid and its impact in the contractual documentation which governs parties entitlements in this matter as COVID was not known of at the time the contract was entered into. As such, in the absence of negotiated agreement between the parties, the ultimate determination of rights and liabilities in terms of the contract would lie with the courts. In the absence of precedent there is no guarantee that the Council could successfully argue that a compensation payment is not due and it may therefore face not only the full compensation bill but also the time and cost of processing the case together with the expenses of the successful party.



the potential cost of this potentially costly legal dispute

– impossible to definitively say; various factors including what is sued for by the party, the length of any hearing required to adjudicate, the court in which it is pursued, the use of Counsel and obviously whether the party is successful or otherwise will all impact on cost.



This is difficult to understand. If the compensation payment of £803,000.00 was agreed, It had to be less than the potential cost of the costly legal dispute.

Surely some estimate of the potentially costly legal dispute was calculated. If they did not know the potential cost of the potential costly legal dispute how did they know this £803,000.00 was a good outcome and value for money for East Renfrewshire Council Tax Payers?


Again, I find it hard to believe that there are no Documents/Reports/Emails that can be released along with the above responses.


There is a public interest test element which the authority is supposed to have thought through.


What a Council spends Council Tax Payers money on is always of public interest.


How a Council spends Council Tax Payers money is always of public interest.


How the Covid pandemic is affecting Council finances/services is of public interest.


If ‘Staff may not have followed the rules exactly’ then this is of public interest.


If the Director of Environment is spending Council Tax Payers money without any council approval, permission or consent then this is of public interest.


ERC cannot just use the Covid pandemic as a ‘catch all’ reason to deny access to information held by them.


The public interest is best served by openness and transparency, not secrecy.


Again would appreciate that appeal takes further consideration of why I disagree with ERC/Mr Mahon and that these views are taken into consideration as why the requested documents/reports/emails should be provided.


It is difficult to form an appeal in respect of a review, when applicants are not informed what particular section of the act the council is relying on to reject the FOI.


'Other information sought in terms of your request is held but is considered exempt from disclosure in terms of the Freedom of Information (Scotland) Act 2002. Communications between the Council and its various officers and agents in this regard was undertaken in respect of a contract which is still live and subject to ongoing performance by the contractor.'


Mr Mahon/ERC have not referred to a section in the act for this 'exemption'.


I therefore request that the relevant documents/reports/emails are provided.


‘It therefore would be contrary to the Council’s commercial interests to disclose its internal consideration of the pros and cons of this matter to the public and sight the contractor and indeed any others engaged in construction work on behalf of the Council on matters which may encourage them to make additional claims on this or other similar contracts resulting in further financial liability. ‘


- This has nothing to do with the council interests. If other contractors are entitled to make legitimate claims, why should the council conceal that fact.



‘I would therefore indicate that material is withheld on the basis of s33(1)(b) of the Act, namely that it would be to the substantial prejudice of the Council’s commercial interests if it was released. ‘


- No, I disagree. The reasons are given in my appeal.


‘I am satisfied that the wider public interest in overall protection of the public purse outweighs the interest in disclosure of the information sought. ‘


- The act states that ERC/Mr Mahon ERC Chief Officer - Legal and Procurement must lay out arguments both for and against.



‘If further claims are encouraged by disclosure of the Council’s consideration of its overall position they may not be capable of being settled on terms as advantageous as those obtained and previously reported upon.
This in turn will likely create greater liability and stress on Council budgets which in turn impacts on local taxation and/or quality and scope of services. ‘


- Not the Applicant's problem and not covered by FOI legislation, if they are entitled they cannot be conned out of money by the council hiding the fact that they are entitled to compensation.



‘The public are in any event considered to be sufficiently sighted on the overall expenditure on the matter as evidenced by the report which prompted this request.'


No they are not 'sufficiently sighted'. When presenting the report to Cabinet the Director of Environment emphasised that ‘It’s really complicated’


The FOI is requesting information to break down and simplify the report to enable understanding of these complexities regarding the compensation payment of £803,000 to be made to Heron Bros.


To do this, the requested further information held by ERC is required.


'Communication between the Council and the contractor involved is also considered to be legitimately withheld on the basis of the same section, although in this case it is also the contractor’s own commercial interests which are considered to be prejudiced by release.
The disclosure of information which may allow competitors to assess the firm’s vulnerability in light of the pressures brought about by COVID and the various restrictions following on from it and bid accordingly for future contracts will in my opinion seriously impact on Heron Bros ability to successfully tender for those opportunities and provide rivals with intelligence which may give them an advantage in an already pressured marketplace.’


- Mr Mahon ERC Chief Officer - Legal and Procurement is not there as a defender of the companies involved, he is there to decide on the FOI to ERC.



'Again, the public interest is to my mind better served by stimulating competition amongst tenderers which in turn drives down prices and provides better value for money to the public purse. Disadvantaging a specific contractor merely serves to shrink the competition to the ultimate disadvantage of the buyer.'


- Not Mr Mahon ERC Chief Officer - Legal and Procurement’s call. This is only the opinion of ERC Chief Officer - Legal and Procurement. They just cannot say it would not be in public interest, they must prove it.


The only section Mr Mahon/ERC references directly is

(section 33(1)(b)) - disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation (section 33(1)(b));


All of the exemptions in section 33 are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.



'22. In seeking to withhold information under section 33(1)(b), the authority must ensure that it sets out whose commercial interests are likely to be prejudiced, as well as the particular nature of those interests......

“Likely”

23. The exemption in section 33(1)(b) can only be applied where disclosure would, or would be likely to, cause substantial prejudice. There must be at least a significant probability that substantial prejudice would occur in order for the exemption to be properly applied. There must also be a genuine link between disclosure and the harm: it cannot simply be a remote or hypothetical possibility.'


'The public interest test

29. If the exemption applies, the authority must go on to consider the public interest in relation to the information – see section 2(1)(b) of FOISA. This means assessing whether, in all the

circumstances of the case, the public interest is better served by disclosing or withholding the information. The authority must identify and set out the competing public interest arguments:

(i) as to why the public interest would be served by disclosing the information, and

(ii) why it would be served by maintaining the exemption.

30. Having identified the public interest arguments on each side, the authority must then carry out an exercise to determine where, on balance, the public interest lies. There is an in-built presumption in FOISA that it is in the public interest to disclose information unless a public authority can show why there is a greater public interest in withholding the information. '



Mr Mahon and ERC have failed to prove a case against public interest.


They just cannot say it would not be in public interest, they must prove it.


There is a high degree of Public Interest in this matter
as indicated in the Local Press On Line -

'Published The Extra On Line -

News
People
Nurseries costs in East Renfrewshire criticised

A decision to pay more than £800,000 in compensation to a company building new nurseries in East Renfrewshire has been blasted by opposition councillors.'

If you view the recording of the meeting, you will see Councillors were frustrated at the lack of information provided.

The cost of the compensation payment is not commercially sensitive.

Details of invoices/payments and dates of payments concerning how the compensation payment has been/will be paid should be provided.

I don’t believe ERC are explaining their decision in detail -

Beyond quoting the exemption the authority should be able to explain in more detail why that exemption outweighs any public interest test.


- ERC needs to justify their decision


- ERC provide the detailed explanation of their decision and how they weighed public interest against commercial sensitivity


- the decision doesn’t have to be applied to every whole document(s).


ERC should identify any information that might not be commercially sensitive.


The refusal should not cover every line/page/part of every document/report/email.


The lines/pages/part of the documents/reports/emails not covered by ‘commercial sensitivity’ should be provided/published.


East Renfrewshire Council Tax Payers will have to pay for this compensation payment but are being denied the evidence to scrutinise the payment.


Again, I believe Mr Mahon/ERC have not made the case to withhold ALL the requested documents/reports/emails.


Your consideration of this appeal is appreciated.

Sent: 13 December 2020 16:43
To: *Customer Services < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Subject: Freedom of Information(FOI) Request - ERC/Scottish Water Nurseries additional Payments for connecting to sewers

To: East Renfrewshire Council

Freedom of Information Request(FOI)

This FOI concerns details contained in the Report by Director of Environment - EARLY LEARNING AND CHILDCARE (Expansion 2020) Dated December 2020, presented to East Renfrewshire Council(ERC) Cabinet Committee on 3 December 2020.

The FOI is specifically concerns Scottish Water(SW) negotiations/information only mentioned within the report,

It particularly concerns the details regarding Scottish Water and

The main new build nurseries situated at the following locations;

•Glenwood, adjacent to Glenwood Family Centre

•Crookfur, at the Parklands pavilion

•Overlee, at the Overlee Park pavilion

•Busby, at Busby Primary School

•Eaglesham, at Eaglesham Primary School

•Cross Arthurlie at Cross Arthurlie Primary School

and specifically Information held regarding

- Additional Scottish Water related drainage/sewerage costs of £576,000 (this includes additional £50,000 contingency sum)

.- Details of the Council's engineering consultant (Company/Name?) anticipation that Scottish Water would allow a relaxation of the regulations as was SW’s historical practice and so no allowance was made for this cost.

- Details of why unfortunately, it transpires that SW has toughened its stance in this regard during the design and construction period and lessons have been learned for future projects.

- Details of the lessons learned for future projects

- Details of the Council's request to Scottish Water (SW) to allow a connection to the combined sewer in all five new build nurseries

- and details of why it was initially refused.

- Details of how it has been possible, over an extended period, to negotiate Scottish Water's acceptance in principle to connect to the combined sewer at Crookfur, Eaglesham and Busby on condition that at least an equivalent amount of surface water is removed from the combined sewer from within the same catchment (by means of diverting road gullies to watercourses).

- details of how at least an equivalent amount of surface water will be removed from the combined sewer from within the same catchment

- Details of the means and how/what road gullies will be diverted to watercourses

- Details of these watercourses

- Details regarding the remaining two nurseries at Overlee and Glenwood of how it has been possible to connect the buildings to water courses thereby negating the need to connect to the combined sewer.

- Details of the water courses the buildings will be connected to.

Please provide all information/reports/documents/meeting notes/minutes held regarding above including all correspondence/emails to/from/between -

ERC Council Officials and ERC Council Officials

ERC Council Officials and ERC Councillors

ERC Council Officials and Scottish Water

ERC Council Officials and Council's engineering consultant

ERC Council Officials and legal services(Excluding the actual legal advice given)

ERC Council Officials and any other parties involved (excluding Heron Bros)


Electronic copies are acceptable.

Thanks



------ Original Message ------
From: "Mahon, Gerry" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Sent: Thursday, 4 Mar, 2021 At 15:47
Subject: Freedom of Information(FOI) Review Request - ERC/Scottish Water Nurseries additional Payments for connecting to sewers


I refer to the above, to your request of 13 December 2020 regarding information in connection with Scottish Water issues and to your combined request for review received on 28th January 2021 following the Council’s failure to respond within statutory timescales.

As you are aware, I have responsibility within the Council for dealing with reviews under the Freedom of Information and Environmental Information regimes and can advise that I have now concluded consideration of this case.

In the first instance I would offer my sincere apologies on behalf of the Council for the failure to respond to the initial request within appropriate timeframes.

The department concerned is significantly affected by COVID response work at the present time and this has hampered the availability of staff to conduct relevant searches etc but I accept that it would have been appropriate to advise you of any expected delays and confirm a firm date by which you could have expected a response.

Turning to the substance of your request, I note that you ask certain questions which are not the subject of recorded information as such but for which I can supply answers in the spirit of assistance:-

Details of the Council's engineering consultant (Company/Name?) anticipation that Scottish Water would allow a relaxation of the regulations as was SW’s historical practice and so no allowance was made for this cost.


(Response)– The consultant is Blyth and Blyth.

The anticipated position of Scottish Water is not held as recorded information but I am advised it was based on experience of Scottish Water’s practice over preceding years and developments.

(Response)I understand that this change in stance affected many developments across the country in other Council areas as well as in East Renfrewshire.

(Response)A Pre development enquiry (PDE) form for each site had been with Scottish Water since June 2018. It took 20 months to get a final response which was a blanket refusal for surface water connections into combined sewers for all five sites.

(Response)Early years designs were completed more than 2 years ago when it was still acceptable to connect to combined sewers. We received planning approval based on this proposal.


- Details of why unfortunately, it transpires that SW has toughened its stance in this regard during the design and construction period and lessons have been learned for future projects.


(Response)– no information is held as to why Scottish Water adopted this changed position but it is understood this followed on from a change in Scottish Government policy.



- Details of the lessons learned for future projects


(Response)– the Council is now aware of Scottish Water’s current approach to this issue and will cost any necessary work in light of their stance, with early engagement with relevant personnel in their offices



- Details of the Council's request to Scottish Water (SW) to allow a connection to the combined sewer in all five new build nurseries – request was made as per

(Response)– requests are made directly by the contractors engaged in the construction and not the Council itself.


- and details of why it was initially refused


(Response)–. No reason was given – just a blank refusal



- Details of how it has been possible, over an extended period, to negotiate Scottish Water's acceptance in principle to connect to the combined sewer at Crookfur, Eaglesham and Busby on condition that at least an equivalent amount of surface water is removed from the combined sewer from within the same catchment (by means of diverting road gullies to watercourses)


(Response)– Scottish Water indicated that they would be prepared to accept the principle of offsetting if suitable arrangements could be designed by the Council’s consultants. Blyth and Blyth developed solutions satisfactory to Scottish Water in connection with these sites



- details of how at least an equivalent amount of surface water will be removed from the combined sewer from within the same catchment

(Response)–see attached docs

- Details of the means and how/what road gullies will be diverted to watercourses

(Response)– see attached


- Details of these watercourses

(Response)– see attached



- Details regarding the remaining two nurseries at Overlee and Glenwood of how it has been possible to connect the buildings to water courses thereby negating the need to connect to the combined sewer

(Response)– proximity of existing watercourses such as White Cart and Auldhouse Burn to the developments allowed connection other than to combined sewer.


- Details of the water courses the buildings will be connected to.

(Response)- as above

This concludes the review process. If you are dissatisfied with the outcome of this review, you have the right to appeal to the Scottish Information Commissioner. His address is:

Scottish Information Commissioner
Kinburn Castle
St. Andrews

Yours sincerely
Gerry Mahon
Chief officer – Legal and Procurement

Crookfur family Centre Offset Solution at Hazelwood Ave as agreed with Scottish Water