Your Ref:
Our Ref: FOI/379868 APPEAL /
Mr Joel Benjamin
Email: / 25 June 2015
Dear Mr Benjamin
Freedom of Information Request 379868
I am writing in respect of your request for a review of the City Council’s response to your request for information, dated the 20 May, which was handled under the Freedom of Information Act2000. This matter has been assigned to me to investigate and review. The result of my review is contained within this letter.
The information you originally requested was as follows
- For each of the Council's LOBO loans, please provide:
1.Loan principal
2.Maturity date
3.Trade date when the loan was signed
4.Initial interest rate
5.Current stepped-up interest rate and step-up date where applicable
6.Any formula or structure determining the interest rate where applicable
7.The first LOBO option call date
8.The LOBO option call frequency
9.Day count convention used for calculation of interest payments
10.The original broker of the loan and fee paid
11.Broker and fee paid for any subsequent restructuring
We provided the following response –
- In response to points 1 – 8 please refer to the following table:
1 / 2 / 3 / 4 / 5 / 6 / 7 / 8
PRINCIPAL / MATURITY / ADVANCE / INTEREST / INTEREST / FORMULAE / ROLL OVER / ROLL OVER
DATE / DATE / RATE / RATE / DATE / PERIOD
(Initial) / (Current)
30,000,000 / 25/01/2066 / 24/01/2006 / 3.77 / 3.77 / N/A / 26/01/2020 / 5 yearly
10,000,000 / 28/04/2066 / 28/04/2006 / 4.87 / 4.87 / N/A / 28/04/2018 / 5 yearly
10,000,000 / 09/05/2066 / 09/05/2006 / 4.87 / 4.87 / N/A / 09/05/2018 / 5 yearly
15,000,000 / 09/05/2066 / 09/05/2006 / 4.87 / 4.87 / N/A / 09/05/2018 / 5 yearly
25,000,000 / 27/11/2076 / 27/11/2006 / 3.785 / 3.785 / N/A / 27/11/2018 / 5 yearly
25,000,000 / 26/03/2077 / 26/03/2007 / 3.99 / 3.99 / N/A / 07/04/2015 / 1 yearly
30,000,000 / 12/07/2077 / 11/07/2007 / 4.30 / 4.30 / N/A / 13/07/2015 / 1 yearly
25,000,000 / 08/05/2066 / 08/05/2006 / 4.90 / 4.90 / N/A / 08/05/2016 / 5 yearly
9.Semi-Annual in arrears on a 365-day basis to include 29th February in a leap year. Interest calculated to Interest Payment Date.
10.The information requested in this element of your request would, if disclosed, represent a breach of Section 41 of the Freedom of Information Act 2000, which exempts information if its disclosure would be likely to prejudice the commercial interests of any person (A person may be an individual, a company, the public authority itself or any other legal entity.)
To clarify; there is information contained within the agreements which could not be obtained unless released by the City Council. Additionally, it has been provided to the City Council with no expectation of any subsequent release into the public domain. As such any disclosure made by the City Council would represent a breach of Section 41 of the Freedom of Information Act 2000 which states that information will be exempt from public disclosure if it was obtained from another person or organisation and disclosure would result in a breach of confidence over which a person could take legal action (i.e. an actionable breach of confidence).
A breach of confidence will become actionable if:
- The information has the necessary quality of confidence;
- The information was given in circumstances under an obligation of confidence;
- And there was an unauthorised use of the information to the detriment of the confider (the element of detriment is not always necessary).
In accordance with Section 41 assessment of the requested information must be made with regards to the following points before information can be ruled as provided in confidence or subject to a duty of confidence:
- Was the information obtained by the public authority from any other person?
- Is the information held subject to a duty of confidence (express or implied)?
- Would the disclosure of this information to the public, otherwise than under the Freedom of Information Act, constitute an actionable breach of confidence? This will include consideration of whether there would be a defence to an action for breach of confidence.
If a Local Authority receives a request for information which it has obtained from another person and that Local Authority holds the information subject to a duty of confidence, that information will be exempt if providing it to the public would constitute an actionable breach of that confidence.
In accordance with this if the City Council were to release the information you have requested it would be committing an actionable breach of the exemption and, as such, is of the opinion the information should be withheld.
To clarify, the term ‘actionable’ relates to a breach of confidence which is actionable if a person could bring a legal action against the Local Authority and be successful. The courts have recognised that a person will not succeed in any such action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence.
In line with the above the City Council feels the application of Section 41 is appropriate in these circumstances and that there is a clear public interest in withholding the information as potential release could place the City Council in a situation where it is required to defend its actions in a court of law and, potentially, financially compensate any organisation affected by our disclosure.
Additionally, we have withheld the release of information in accordance with Section 43(2) of the Freedom of Information Act 2000
However, where information is not exempt from release by virtue of Section 41 it, in the opinion of the City Council, will be exempt from disclosure in accordance with Section 43(2) of the Freedom of Information Act 2000 which exempts information if its disclosure would be likely to prejudice the commercial interests of any person (A person may be an individual, a company, the public authority itself or any other legal entity.)
To clarify; the information we have withheld would, if released into the public domain, affect both the commercial ability and reputation of the City Council. The information contained within the LOBO agreements includes the respective loan amounts and interest rates negotiated by the City Council and the relevant third party.
If the detail of each agreement were to become public knowledge the present companies would be placed at a commercial disadvantage as any other organisations wishing to broker similar agreements would have the benefit of knowing the terms and conditions Liverpool City Council were able to negotiate and, as such, would be at an advantageous position.
The application of Section 43 of the Freedom of Information Act 2000 requires the City Council to consider the public interest in regards to the disclosure of the requested information. Accordingly the City Council has given consideration to a number of factors including regarding disclosure:
- The City Council’s obligations to provide value for money to the tax-payers.
- As with most undertaking public money will be involved.
- Release of information promotes transparency and increases the level of public debate and involvement in Local Authority decision-making
However, the following factors relating to the withholding of the requested information have also been considered.
- The potential effect on the trading reputation of the City Council
- The risk of public money being used in the defence of legal action brought about as a result of the disclosure of information under the Freedom of Information Act 2000
Additional to this the City Council must also take into account the effect upon future negotiations of a similar nature as the relevant third party organisations may well become apprehensive about entering into negotiations and discussions with Liverpool City Council should they feel that, if requested, the relevant terms and conditions and financial detail may well be made publicly available under the Freedom of Information Act 2000.
On the basis of the above the City Council feels the application of Section 43(2) of the Freedom of Information Act 2000 appropriate
11.N/A
For purposes of clarity, I will be conducting our internal review based onyour email to the City Council dated the22 May, in which you stated –
- Please provide the name of the bank(s) and broker(s) which corresponds to the LOBO loans in the table provided.
- Please also confirm in writing which financial institutions Liverpool City Council has consulted with, prior to making a determination that disclosure of the loan contracts and further loan details would prejudice the interests of a) the council?, and b) specific financial institutions?
As a result and in responses to the points you raise, I can confirm the following –
- Bank of Scotland, Barclays, Bayern LB, Dexia, Eurohypo
- The City Council has not consulted with, nor are we required to do so, any financial institutions in regards to disclosure of the information you have requested.
To clarify; as the information requested is held by the City Council any decision regarding disclosure will be made, principally, by the City Council. However, the City Council we may contact relevant third party(s) where deemed appropriate. In this particular instance it was not deemed necessary and, at this point, we would refer you to thefollowing extract from our original response:
‘In line with the above the City Council feels the application of Section 41 is appropriate in these circumstances and that there is a clear public interest in withholding the information as potential release could place the City Council in a situation where it is required to defend its actions in a court of law and, potentially, financially compensate any organisation affected by our disclosure’
As stated in the response although the risk of court action is described as ‘potential’ it is still real and, accordingly, felt sufficient to withhold the information requested.
Additionally, we would draw your attention to the following extract from our original response:
‘The risk of public money being used in the defence of legal action brought about as a result of the disclosure of information under the Freedom of Information Act 2000’
This was included in our public interest test in relation to the application of Section 43(2) of the Freedom of Information Act 2000. The City Council is of the opinion that disclosure under the Freedom of Information Act 2000 cannot possibly be carried out in the public interest when that disclosure can, whether inferred or implicit, lead to public funds being used to defend legal action.
It is, with this in mind that the City Council feels the response and exemptions applied were appropriate
This concludes my review and, as a result, the City Council upholds its decision to provide the response it did.
As I have now reviewed your original response, you have exhausted the Council’s appeals process for the purposes of this request.
Accordingly, should you remain dissatisfied, please contact the Information Commissioner’s Office, via the following:
Website is and the postal address and telephone numbers are:-
Information Commissioner’s Office, Wycliffe House, Water Lane
Wilmslow, Cheshire, SK9 5AF
Fax number 01625 524 510
Telephone 01625 545745
Email – (they advise that their email is not secure)
ÿÿYours sincerely
Michael Jones
Deputy Head of Democratic Services
Information Team Municipal Buildings Dale Street Liverpool L2 2DH
Telephone 0151 2330418Email