FOI and outsourcing - a buffer to FOI?

An outsourcing contract acts as a buffer against FOI requests

This post is in response to a tweet about the release of the Capita NSCSO One Barnet Contract which, on the face of it to the outside world, appears to be a good thing. The contract is worth £320m over the 10 years.

Sensible move by Barnet to proactively publish contract with Capita http://t.co/VVjOcjXOkC Wish more authorities were as bold
— Jon Baines (@bainesy1969) September 23, 2013

@_MrMustard did they withhold the whole contract? Ask them specifically for clauses that relate to FOI @bainesy1969
— FOI kid (@FOIkid) September 23, 2013

Right, for non-Barnet people our council have decided to contract out for 10 years to Capita the following services which they obliquely describe as back office:

Customer Services
Estates (Asset Management, Building Services, Property Services)
Finance
Human Resources
Information Systems
Procurement
Revenues and Benefits

Revenues and benefits is council tax and business rates collection to you and me, not what one would exactly describe as back office. The contract for these services is 2,084 pages in length and has been published in multiple pdfs on the council website, here. A classic case of hiding the detail in full view. Rest assured that the Barnet Bloggers will, between them, read the whole thing. Has any ruling councillor read the whole contract, especially one from the Cabinet who committed us to this deal? probably not. None of the Cabinet admitted to reading it, Mr Mustard did ask them all and the silence was deafening.

Mr Mustard thinks that the reason the council published the final contract was that they were going to get multiple FOI requests for it and it was actually quicker to post it online. Mr Reasonable had asked and goodness knows who else (not Mr Mustard as he is in self imposed FOI exile for now.) He wasn't "banned" (questions automatically found to be vexatious) from asking about One Barnet; only on parking, parking tickets and CPZ's which is now history.

Now let us simplify matters to a contract for Parking Enforcement. That was signed with NSL to start on 1 May 2012 and is worth about £2.5m a year and is for an initial 5 year term. Mr Mustard does admit to being very interested in parking and he helps people pro bono (free of charge) to appeal their parking tickets and currently has a 97% success rate after 65 appeals. The council will either just throw in the towel in future on his cases (as they are a flea bite out of the 165,000 PCN issued a year) or they will put extra resource into fighting him. Currently they throw in the towel when faced with reasoned and logical argument and occasionally they are kind to him and exercise their discretion in favour of old folks who have got a bit befuddled with their blue badge.

There was considerable doubt in the mind of Mr Mustard about the status of bailiffs in the year 2012-13. So the first month was managed entirely by the council (there was a one month delay in getting the parking contract off the ground - pension issues caused by NSL Ltd having another firm to do the scanning). As Mr Mustard couldn't ask any FOI questions about parking he took a different approach. Once a year it is possible to interrogate the Accounts of the council. This right is established by Section 15 of the Audit Commission Act 1988. (ACA1988) Mr Mustard asked to see bailiff contracts for 2012-13 (he was given a 200 page expired contract to look at, he didn't bother). It turned out there wasn't a bailiff contract for 2012-13, Mr Mustard was told there was no bailiff derived income for that year. Putting aside the incompetence of not collecting PCN in a timely manner (and they should be cancelled if left moribund for 6 months at any stage) Mr Mustard was a little surprised. The first month could be understood as it was anticipated that the NSL contract would have started on 1 April 12 but not the other 11 months as the contract with NSL included:

"The Service Provider will engage with a suitable number of bailiff companies to enforce County Court Warrants and comply with the Barnet Code of Practice."

Mr Mustard has not requested the Barnet Code of Practice under FOI. He also notes the interesting word "engage" as opposed to contract, appoint, instruct, etc

Now under the ACA 1988 Mr Mustard, as a resident, is entitled to see any contract that the council takes out. They didn't take out the bailiff contracts, NSL Ltd did. Let us have a look at the contract terms, Mr Mustard has a redacted copy of the contract with NSL (sorry about the white on black, a technical issue)

Foi Section of NSL Contract by MisterMustard

So from that it seems to be up to the council to decide if something is to be disclosed or not.

Did the council hold the bailiff contracts? (they jolly well should as they have a duty of care in respect of bailiff behaviour but that is a fine theory not usually borne out in practice) Here are minutes of meetings between NSL and Barnet Council managements (these were easily obtained by another party and given to Mr Mustard as his questions were, at the relevant time, too vexatious to be answered).

On 5 October 12 the minutes show the following:

Redacted requested copies of SLA and contract made with bailiffs.

Now the minutes only make sense if the redacted initials are those of a Barnet Council employee as it was NSL who signed the contract so they will have a copy. (SLA is Service Level Agreement, by the way). Now, if the SLA and contract had been supplied to Barnet Council then Mr Mustard thinks they are disclosable under FOI.

The plot thickens. Someone else asked for the bailiff contracts, the response was given the reference 293065 but doesn't appear in the published list of FOI responses. Does that make you think that the responses published on the council website are selective? Luckily Mr Mustard has the response, as follows:

I am writing to inform you that we have searched our records and the information you requested is not held by London Borough of Barnet.

1. These 3rd party sub contracts are held on the council's behalf. They are contracts between the contractors and the 3rd parties and the council has no proprietary rights in them.
2. There is no statutory obligation on the council to hold copies of these 3rd party sub contracts.

So, copies were requested in October 12 but hadn't been received by July 13 and the parking client side, who are paid to oversee parking enforcement are either utterly hopeless at following up action points in the minutes, or bailiff contracts don't actually exist, or the FOI response is bunkum. The lack of clarity has led Mr Mustard to object to the signing off of Barnet Council's Accounts for the year. The response is due in about 10 days.

Mr Mustard thinks that by now @bainesy1969 might be reviewing his opinion of Barnet Council, we'll see. He'll either tell us in the comment box or email mrmustard@zoho.com to have his view added to this post.

So to get back to the question in hand for all the FOI experts who read this. If NSL take out the contract on behalf of Barnet council but don't give them a copy, is it subject to disclosure under FOI? Mr Mustard thinks not. One possible lever is that only a creditor can instruct a bailiff so Barnet Council can instruct the bailiff and NSL can't (let us avoid, for now, the red herring that NSL also own a bailiff company called Task Enforcement Ltd and have used them to chase unpaid PCN for Barnet Council as that is a conflict of interest blog for another day) so any contract that NSL sign is as agent for Barnet Council and not as the principal? Mr Mustard isn't a lawyer but wonders if that changes the position in terms of the document being subject to FOI?

NSL Ltd aren't subject to FOI as a contractor. This removes any contract they sign on their own behalf but for the benefit of the council out of public scrutiny and on NSCSO that is potentially £320m of contracts we can't see. Doesn't look so open and transparent now does it?

If you think you can get current bailiff contracts please ask for them (foi@barnet.gov.uk). Don't tell Mr Mustard you have done so and it isn't on his behalf. We don't want you accused of being in concert with him.

Now @FOIkid, tell Mr Mustard, is there a solution or should FOI be extended to apply to all contracts funded by the public purse?

Yours frugally

Mr Mustard

@_MrMustard parking contract refers to subcontractors. Council admits that bailiff contract is held on its behalf. Def FOIable @bainesy1969
— FOI kid (@FOIkid) September 25, 2013

Comment; So it looks like the council got it wrong. It will be up to the original requestor to ask for the review. It also occurs to Mr Mustard that he can go back to the council and suggest that they should have released the bailiff contracts under ACA 1988 on the same grounds that they are held on behalf of the council.