Law Society freedom of information code - adjudication

Issued by Richard Ayre, the Freedom of Information Adjudicator, on 13 July 2002

The issue

Whether it was appropriate under the provisions of the Society's freedom of information code for a letter from the chief executive to council members concerning problems in relation to an IT procurement project to have been designated confidential.

The background

On 25 April 2002, the chief executive, Janet Paraskeva, wrote to members of the Society's Council to inform them of various problems associated with the introduction of an IT project called Programme Engineer.

The letter was clearly marked 'Confidential'.

Under the Society's freedom of information code, members of the council are entitled to have access to information in the Society's possession even if it falls within the exceptions detailed in section B of the code (which restrict the information to which non-members are entitled).

A member of the council, Sue Nelson, having received the chief executive's letter, asked her to justify the basis upon which it had been marked confidential.

According to the Society, Ms Paraskeva replied that the letter had contained 'information about the Society's stance in an on-going relationship with Aspective, the Programme Engineer supplier' and that she was 'concerned that wider disclosure at this stage could prejudice the Society's interests' in what were then forthcoming change control negotiations.

Ms Paraskeva continued: 'This information has not been disclosed in pursuance of the freedom of information code request and so it does not fall under the code.

Were such a request to be made, however, I consider that it would fall under section B.3.5 of the code'.

Being dissatisfied with the chief executive's justification, Ms Nelson asked for the matter to be referred for adjudication.

The Society wrote accordingly on 30 May to the adjudicator who in turn wrote to both the Society and Ms Nelson on 15 June to invite submissions.

Submissions

In referring the matter to the adjudicator, the Society said that the letter which Ms Paraskeva had designated confidential had contained 'a frank assessment of the management failings within the Society' which had led to the problems over the IT project.

These failings had not been admitted to Aspective, with whom the Society needed to renegotiate its contracts, and to do so at that stage would have weakened the Society's negotiating position.

The Society also noted that it expected the reasons for non-disclosure to fall away when the negotiations were concluded, which it expected to be during June.

On 2 July, Ms Nelson wrote to the adjudicator arguing that since Aspective had a representative sitting on the Programme Engineer project board, there could be 'no information about the management of the Programme Engineer project which is a secret to be kept from them'.

She asked for a declaration that Ms Paraskeva's letter had been improperly classified as confidential or, if it had been properly so classified, that the need for confidentiality had now ceased as the negotiations with Aspective had concluded.

Adjudication

Section B.3.5 of the code enables the Society to exempt from disclosure 'information relating to commercial negotiations, where disclosure could prejudice the Society's position in those negotiations'.

The section continues: 'Unless the information could prejudice future negotiations, such information would cease to be covered by the exclusion at the conclusion of the negotiations or, if the negotiations had failed to reach a conclusion, after six months running from their commencement.'

Ms Paraskeva's letter to council members contained an admission of deficiencies in the Society's handling of Programme Engineer.

It was clearly important for members of council to be kept fully informed, not least because of the possible financial consequences of the Society's failure to meet the timetable against which a fixed price had been negotiated with Aspective.

Though Aspective, on Ms Nelson's account, may have been represented on the project board and might well have been aware therefore of the reasons underlying the Society's failure to meet the agreed timetable, the declarations made by Ms Paraskeva to council members went far beyond the sort of admission of responsibility which is likely to have been made at a project board.

There seems no doubt that, had Aspective been given access to Ms Paraskeva's letter, the Society's position in renegotiating the price and timetable of the contract could have been significantly prejudiced.

Conversely, had Ms Paraskeva framed her letter in terms which enabled it to be made freely available without putting those negotiations at risk, it would have been significantly less candid than members of council have a right to expect.

Had Ms Paraskeva been asked to release information concerning this matter under the Society's freedom of information code, she would have been acting in accordance with the provisions of section B.3.5 in declining to release the information.

Therefore, it was appropriate for her to apply the same considerations in designating her letter confidential and thereby placing council members under an implied undertaking not to disclose it.

However, it is clear that the provisions of Section B.3.5 are time-limited and no longer apply when the commercial negotiations concerned are complete.

The Society in its submission expected that negotiations would be concluded during June and it has not indicated that there has been a failure to meet that timetable.

In the absence of a clear reason under the code to the contrary, the Society is therefore asked to release members of council without delay from their obligation to keep the contents of the letter confidential.

Summary

Ms Paraskeva's decision to designate her letter of 25 April to council members as confidential was consistent with the provisions of the Society's freedom of information code.

Under the code, the reasons for maintaining the confidential status of the letter ceased when the related commercial negotiations were completed, and unless the Society advances a clear reason under the code to the contrary, members of council should be relieved without delay of their obligation to keep the contents of the letter confidential.

Note from the Society: Publication of this adjudication had to be delayed as the commercial negotiations lasted longer than anticipated