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31st January 2022.
ATISN 15739 – Blackberry Lane Solar Park.
Thank you for your request which I received on 3rd December 2021. You asked for:
A copy of all correspondence between the Welsh Government and RSK ADAS Ltd in relation to the Soil Policy Evidence Programme work package SPEP 2021-22/03 – “The impact of solar photovoltaic (PV) sites on soil and agricultural land quality’’.
A copy of the information I have decided to release is enclosed.
I have decided that some of the information is exempt from disclosure under sections 21, 40 and 43 of the Freedom of Information and is therefore withheld. The reasons for applying these exemptions are set out in full at Annex 1 to this letter.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit,
or Email: Freedom.email@example.com
Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office,
However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Application of exemptions
The Freedom of information Act provides a right for anyone to ask a public authority to make requested information available to the wider public. As the release of requested information is to the world, not just the requester, public authorities need to consider the effects of making the information freely available to everybody. Any personal interest the requester has for accessing the information cannot override those wider considerations.
I have decided to withhold the following information:
- Copies of draft versions of WP1 and 2a of ‘SPEP 2021-22/03’ have previously been released to you under FOI release 15722: Soil Policy | GOV.WALES (Section 21 – information accessible to applicant by other means).
- Personal information in correspondence released such as telephone numbers, correspondence addresses, e-mail addresses have been redacted (Section 40 – personal information).
- Commercially sensitive information in respect of quotes, fees and daily rates of RSK ADAS Ltd. withheld on request of 3rd party (Section 43 - Commercial interests).
Section 40 (2) – Personal Information
The Freedom of Information Act (FOIA) provides a general right of access to information held by a public authority. We are mindful that our response to requests for information should be purpose and identity blind, the identity of the applicant not being a factor. Therefore, we have processed this request in the same manner as one from any other member of the public seeking the same information.
Section 40 of the FOIA sets out an exemption from the right to know if the information requested is personal information protected by the Data Protection Act (DPA). We consider that names and contact details of officials and correspondents clearly fall within the description of personal data as defined by the DPA and that disclosure would breach the first data protection principle. The first data protection principle has two components:
Personal data is defined in Section 1(1) of the DPA as:
“personal data” means data which relates to a living individual who can be identified –
a. from those data; or
b. from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.
Under Section 40(2) of the FOIA, personal data is exempt from release if disclosure would breach one of the data protection principles. We consider the principle being relevant in this instance is the first.
The First Data Protection Principle
The first data protection principle has two components in relation to personal data. It provides:
- that personal data shall be processed fairly and lawfully; and
- its processing must meet at least one of the conditions in schedule 2 to the DPA.
Guidance from the Information Commissioner states:
“The first data protection principle entails a consideration of whether it would be fair to disclose the personal data in all the circumstances. The Commissioner determined that it would not be fair to disclose the requested information and thus the first data protection principle would be breached. There was no need in the present case therefore to consider whether any other Schedule 2 condition or conditions could be met because even if such conditions could be established, it would still not be possible to disclose the personal data without breaching the DPA” (paragraph 63).
The Information Commissioner has issued guidance on whether release of names of officials in disclosed emails would be unfair, and thus in breach of the first principle of the DPA. The guidance states:
In assessing whether employees can have a reasonable expectation that their names will not be disclosed, key factors will include their level of seniority and responsibility and whether they have a public facing role where they represent the authority to the outside world.
Where the officials and correspondents in question are not senior staff, do not have a public facing role and where they are acting entirely in an administrative capacity, I have concluded that they have a reasonable expectation that their names will not be disclosed. It is my view, therefore, that disclosure of their names and other personal data would breach the first data protection principle, and thus are exempt from release under section 40 of the Freedom of Information Act.
Section 43 (2) – Commercial Interests
The information caught by this exemption relates to bespoke quotes, fees and daily rates. The release of such information into the public domain would undermine the commercial interests of the parties providing information as it would allow competitors to understand the fee structures, and to construct quotes that would undercut these prices. This would harm the commercial interests of RSK and ADAS Ltd.
Decisions relating to non-disclosure of this information have been taken with due consideration of the exemptions identified under Section 43(2) of the Freedom of Information Act 2000 (FOIA). This exemption states that:
(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
Section 43 is a qualified (public interest tested) exemption. This means that in order to engage it, I must show that the public interest in withholding the information is greater than the public interest in releasing it. I have therefore given consideration to the effects of disclosure of the information to the world at large as the information is made available to anybody and everybody, not just the requestor.
Public interest arguments in favour of disclosure
I recognise the general public interest in openness and transparency and releasing the information would help the public gain a better understanding of the decisions made by Government. It is also recognised that there is a public interest in how public money is to be, or has been, used to ensure that Government gets the best value from the public purse.
Public interest arguments in favour of withholding
The release of such information into the public domain would undermine the commercial interests of the parties providing information as it would allow competitors to understand the fee structures, and to construct quotes that would undercut these prices. This would harm the commercial interests of RSK and ADAS Ltd. It would also be the case that bidders would be less willing to submit bespoke tenders for contracts if they knew that such information were to be released into the public domain. This would make tenders more opaque, and would be expected to lead to losses to the public purse, as detail of bids could not be suitably scrutinised to ensure value for money.
It is not in the public interest that companies should be placed into a commercially disadvantaged position simply as a result of bidding for public contracts, and it is not in the public interest that they or the public purse should suffer loss as a result.
I believe the public interest is satisfied by the amount of information being disclosed in response to this request for information.
I am aware that as a general rule, the sensitivity of information is likely to reduce over time, so that the age of information, or timing of the request may be relevant in determining whether to apply the exemption, or where the public interest may lie. In this case, however, the information captured is very much current information.
In conclusion, I believe that the balance of the public interest therefore falls in favour of withholding the information in respect of quotes, fees and daily rates of RSK ADAS Ltd.