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Request
I am writing to you under the Freedom of Information Act 2000 to request the following information. Please may you provide me with:
A copy of the minutes related to the below two items on the agenda of the NLWA board meeting of 3 DECEMBER 2020.
- 19. REVIEW OF RELATIONSHIP WITH LONDONENERGY LTD Report of the Clerk to the Authority. This paper advises Members of a review, commissioned from and carried out by EY. This advised on how the relationship between the Authority and LondonEnergy Ltd (wholly owned by the Authority) should be managed to maximise collaboration. It reports on developments since the report was commissioned and proposes a way forward to set the direction for stronger coordination between the Authority and LondonEnergy Ltd.
- 20. GOVERNANCE OF LONDONENERGY LTD Report of the Managing Director This provides a regular report on the Governance of LondonEnergy Ltd.
Please provide copies of every report on governance of LondonEnergy Ltd (or previous names) and the minutes of the parts of the meetings under that agenda item for the year prior to December 2020.
Please also provide a copy of the document entitled REVIEW OF RELATIONSHIP WITH LONDONENERGY LTD as included in the NLWA board meeting of THURSDAY, 3 DECEMBER 2020.
Please note, that in response to a complaint about the level of information withheld from publication within the minutes of items 19 and 20, argued by NLWA to be unlawful, a response was provided by email from NLWA on 17th November, stating that:
Exempt information from disclosure is set out in Schedule 12A of the Local Government Act 1972 (this schedule was introduced in the 21st century to amend the Act to reflect Freedom of Information legislation). Considerations of disclosure require particularly careful consideration in relation to LondonEnergy Ltd (LEL). While the company is wholly owned by NLWA, it is a separate legal entity, its board comprises directors who do not have a direct connection with NLWA or constituent boroughs, and it operates in a commercial environment where almost every other waste disposal facility is operated by a private sector company.
In relation to the specific instance you highlight from December 2020, the Authority was giving consideration to the overall governance of LEL. This concerned not only the potential appointees to the board but also others on the board whose positions might be affected. This was therefore legitimately a matter exempted under category 1 of Schedule 12A described above, and it was appropriate to make a judgement that disclosing information would have involved an unwarranted interference with the privacy of individuals. Disclosure of partial information was considered, but would have led to speculation which would have had the same unwarranted interference with the privacy of individuals on the board. That includes people who have no direct connection with the Authority.
You refer to the papers in subsequent meetings. Indeed, the appointment of councillors to the LEL Board was referenced in public papers in June 2021 and June 2022. In that case the Authority recognised that the information was potentially exempt from disclosure but considered that the public interest test for withholding was not met.
I believed that the information should not have been exempted as argued by NLWA as individuals who are board members of a company owned by a public body, whose positions are a matter of public record, do not have a right to privacy with regards to information about their professional role or matters arising from that role.
Furthermore, the matters considered by NLWA to be exempt are now two years passed and can no longer reasonably be seen as sensitive either on a commercial or personal basis. Given the time passed speculation can no longer be considered a reasonable argument to use exemption category 1 of Schedule 12A.
Please also note that if there are matters within the above requested reports or minutes that are considered to be exempt due to the genuinely personal nature of their contents, rather than simply relating to a particular individual who is as a matter of public record a board member who has no right to privacy in that capacity, then solely that information should be redacted. Redactions should be strictly limited to information that is personal and not entire sentences, sections of documents or indeed entire documents.
If it is not possible to provide the information requested due to the information exceeding the cost of compliance limits identified in Section 12, please provide advice and assistance, under the Section 16 obligations of the Act, as to how I can refine my request.
If you can identify any ways that my request could be refined I would be grateful for any further advice and assistance.
If you have any queries please don’t hesitate to contact me via email and I will be very happy to clarify what I am asking for and discuss the request, my details are outlined below.
Thank you for your time and I look forward to your response.
Response
This letter follows up our email acknowledging your freedom of information request. We apologise for the delay. This cover letter sets out the considerations we have taken into account in providing the relevant information to you.
You requested:
- the ‘Review of the Relationship with LondonEnergy Ltd’ and ‘Governance of LondonEnergy Ltd’ reports that were on the agenda for the Authority meeting on 3 December 2020,
- every report on governance of LondonEnergy Ltd (or previous names) from December 2019 to December 2020, and
- the minutes from the agenda items relating to the reports listed above.
The table below shows the reports that were within the scope of your request.
|
Meeting Date |
Report Title |
|
02/12/2019 |
Governance of LondonEnergy Ltd |
|
13/02/2020 |
Governance of LondonEnergy Ltd |
|
13/02/2020 |
Parent Protection for LondonEnergy Ltd |
|
02/04/2020 |
Governance of LondonEnergy Ltd |
|
25/06/2020 |
Governance of LondonEnergy Ltd |
|
24/09/2020 |
Governance of LondonEnergy Ltd |
|
03/12/2020 |
Review of Relationship with LondonEnergy Ltd |
|
03/12/2020 |
Governance of LondonEnergy Ltd |
You can download the reports, and a table containing the minutes, using this link.
LondonEnergy Ltd puts into the public domain a substantial amount of company information. This includes their annual accounts, an annual report which is provided to the North London Waste Authority annual general meeting and information on company activities on their website (www.londonenergyltd.com).
In the reports some redactions have been made. The rationale for withholding information is given in the sections below. Where information is redacted, no more is redacted than is necessary to comply with our obligations and we have sought to give useful context – for example where specific financial data are withheld, it remains clear in the papers the matters to which the data refer.
While reviewing the reports, we determined that the following exemptions were engaged by the information they contain (the section references are to the Freedom of Information Act 2000):
- Section 36 – Prejudice to the effective conduct of public affairs,
- Section 40(2) – Personal information,
- Section 42 – Legal professional privilege, and
- Section 43(2) – Commercial interests.
We therefore conducted a public interest test to determine which information should be disclosed and withheld. In doing so we took account of the public interest in:
- transparency and accountability, to promote public understanding of the way the Authority delivers its services through LondonEnergy Ltd (LEL),
- the very significant building works that the Authority is undertaking, which depends on successful coordination with LEL, both to manage construction and operations together and to prepare for use of new facilities,
- good decision-making by the Authority, and
- securing the best use of the seven north London boroughs’ resources
as arguments for disclosure of the reports.
Section 36 – Prejudice to the effective conduct of public affairs
As regards the report from 3 December 2020 on the review of the relationship with LEL, the paper references the conclusions of a review but the appendix to the paper is not provided. This is in accordance with the section 36 exemption. The exemption applies where complying with the request would prejudice or would be likely to prejudice the effective conduct of public affairs. The Authority’s ‘qualified person’ under this section of the Act is the Legal Adviser, and his view is that the report should be withheld as, in line with sections 36(2)(b) and (c) of the Freedom of Information Act 2000, its release would be likely to inhibit the free and frank exchange provision of advice and exchange of views and would otherwise be likely to prejudice the effective conduct of public affairs.
The Authority has 100% ownership of LEL and will from time to time seek to consider both its relationship with the company and how that relationship and mechanisms of control are working towards its primary statutory aims. It is important that the advice it receives about both the company and the Authority, their performance, and the relationship is frank and full.
Section 40(2) – Personal information
The section 40(2) exemption is an absolute exemption and does not require a public interest test. With regards to LondonEnergy Ltd’s staff and members of the public, we have determined that we do not have a lawful basis under the UK GDPR for processing their personal information for the purposes of responding to this request and have therefore redacted their names from the reports and their faces from photographs.
With regards to LEL’s company directors, whose identities are a matter of public record through the company’s filings, we have considered legitimate interest as a lawful basis for processing their personal information and have balanced the purpose for which we would be processing it (the public interest arguments for disclosure that we have listed above) against the interests and rights of the individuals. We have taken the decision to include their names in lists of serving directors and attendees at board meetings while redacting their names in the parts of the minutes that detail the discussions and actions taken. In this way the board can be accountable as a group and the interests and rights of the individuals are less likely to be prejudiced.
Section 42 – Legal professional privilege
The section 42 exemption relates to legal advice where legal professional privilege has not been lost through previous disclosure. In considering whether to withhold or disclose the Legal Adviser’s comments that appear at the end of each report, we have weighed the public interest arguments for disclosure (listed above) against the public interest in a client’s ability to speak freely and frankly with their legal adviser in order to obtain appropriate legal advice and have taken the decision to redact the Legal Adviser’s comments.
Section 43(2) – Commercial interests
The section 43(2) exemption relates to information for which disclosure would prejudice commercial interests. LEL operates in a commercial environment and, whilst the information in the reports is from 2020, much of it remains applicable to its business today. Disclosure of the reports without redaction of the detailed financial flows and commercial position of the company would be likely to inform competitors’ strategies and affect negotiations with third parties for whom LEL disposes of waste. In addition, disclosure of information on insurance claims and payments would be likely to affect LEL’s future procurement of insurance. We have therefore balanced the public interest arguments for disclosure (listed above) with the public interest in LEL’s ability to generate revenue, which ultimately impacts the costs of the Authority’s services to the seven north London boroughs, and have taken the decision to redact this information.
If you would like any further information, please do not hesitate to raise another information request. If you would like to complain about our handling of information requests, you can do so by emailing this email address (informationrequests@nlwa.gov.uk) or using the enquiry form on our website.
