1. In the reply to FOIA8348 reference is made to a lease dated “2007”. Please provide a copy of that document.
2. I have looked at Land Registry Title NYK336235 in which the North Bay Railway is situated. This Land Registry Title does not appear to mention any lease in relation to the North Bay Railway. Please provide copies of any correspondence with the Land Registry or the Tenant in relation to the registration of the lease referred to at item 1 above
3. In relation to the agreements the Council has with Benchmark Leisure Limited please provide details of the amount of rent in relation to the North Bay Railway that is claimed by the developer to form part of the Overage Account as defined in the Fourth Schedule of the Agreement dated 6 December 2002 filed at the Land Registry under title number NYK336235 and the various variations subsequently agreed (“the North Bay Development Agreements”).
4. In relation to the North Bay Development Agreements please provide copies of the Certificates provided by the Independent Chartered Accountant as set out in the Fourth Schedule of the agreement dated 6 December 2002 or any subsequent variation agreement.
5. Please provide the balance held on the Overage Account referred to at 3 above as at the date of your reply.
1. The details of specific contracts between the Council and its tenants/licensees are considered to be commercially sensitive as they would disclose information relating to the financial or business affairs of a third party. These are therefore considered exempt from disclosure under section 43(2) of the Freedom of Information Act.
Section 43(2) of the FOIA states the following:
(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).
Disclosure of the information would be likely to prejudice the Council’s own commercial interests. Specifically those interests in ensuring that the Council is able to obtain best value, and that third parties remain willing to enter into contracts with the Council. Were it to be the case that the Council disclosed copies of rental agreements, it is likely that some third parties would be unwilling to do business with the Council as the disclosure of this information may impact upon their own interests. This would lead to a distorted process resulting in a failure to obtain best value.
As part of the consideration of the application of this exemption, we are required to balance the public interest in disclosure against the public interest in maintaining the exemption.
Public interest arguments for disclosure:
• It is accepted that the public have an interest in the transparency and accountability of the Council, particularly when ensuring that the Council is obtaining best value when agreeing contracts. Disclosure of the contract in question may go towards furthering that interest.
• Where information is kept out of the public domain it may lead to allegations that decisions are not being made in an open and accountable manner.
• Disclosure of the information would allow the public to satisfy themselves that the process has been undertaken lawfully and appropriately.
• Disclosure of the requested information would allow the public to understand the Council’s position thus increasing transparency
Public interest arguments in favour of maintaining the exemption:
• The public have an interest in ensuring that the Council is able to operate effectively and in line with best value when contracting with third parties. Disclosure of the information would likely impact upon the Council’s ability to obtain best value. This may lead to unsatisfactory service provision and unnecessary spending of public funds, which runs contrary to the public’s interest.
• Ensuring well informed decision making – commercially sensitive information is required by the Council so that they are able to make well informed decisions in the best interests of the borough.
• Disclosure of the requested information has significant potential to impact upon the willingness of parties to deal with the Council in future. This would not be conducive to open and transparent negotiations and dealings between the Council and third parties
• The public also have a clear interest in the Council being able to conduct their commercial affairs to the benefit of the borough. It cannot be within the public interest for the Council to have to disclose details connected to these affairs where there is no suggestion or allegation of impropriety. To do so would put the Council at a significant disadvantage which in turn has a direct impact upon the public, the local economy and the local taxpayer.
The Council is satisfied that the public interest rests in maintaining the exemption.
2. No recorded information held
3. Information is commercially sensitive as per Q1 above
4. No recorded information held
5. Information is commercially sensitive as per Q1 above