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Sunday, 6 March 2016

Dreamland Legal Advice My FOI Appeal

My previous post explained that I have been trying to get hold of a document produced 18 months ago by Thanet Council's solicitors Towers and Hamlins about alleged irregularities in the selection of  the operator of the £18million Dreamland  Amusement Park at Margate. So concerned was Thanet Council about these allegations that it decided, on the basis of its legal advice, to take the quite extraordinary step of disallowing Sands Heritage Limited second application to become the Dreamland operator (there were 2 separate  selection processes) and only considering its initial application. I tried to secure a copy of the Towers and Hamlins report via a Freedom of Information request but my request was, unsurprisingly, rejected by the notoriously secretive and cover-up loving Thanet Council.

I publish below my letter to Thanet Council seeking an internal review of their decision. If you can think of any reasons I can to add to this letter please let my know - as Tesco's says every little helps!. Having said that I suspect that even if I was to write the most convincing letter in the world, Thanet Council would still reject it. Which means that I will eventually have to appeal to the Information Commissioner to have the document disclosed. However, I think the wait will be worth it as I believe that the publication of the Towers and Hamlins legal advice may well reveal some embarrassing facts about how our  then Labour council leaders and  senior officers managed this multi-£million flagship project which you paid for.
  
 
Dear Thanet Council
Further to your e-mail of 2 March 2016 concerning my FOI request (Ref 85485/3252604) I disagree with your decision, taken under section 42 of the Freedom of Information Act (legal professional privilege), to refuse my request for a copy of the Towers and Hamlin's legal advice related to the Sands Heritage application to become the operator of the Margate Dreamland Amusement Park.

I would like you to conduct an internal review of your decision. I set out my reasons why you should let me have the document I have requested below.

1.   Timing of Disclosure. The Towers and Hamlin's legal advice was procured by Thanet Council sometime during the summer/ autumn of 2014. In October 2014. Following receipt of this advice Thanet Council selected  Sands Heritage as its preferred candidate to operate the Dreamland Amusement Park.

In its published guidance on section 42 exemption the Information Commissioners Office (ICO) sates that  Where legal advice has served its purpose, litigation has ended or the possibility of litigation has ended the public authority may be more inclined to disclosure.”  The fact that Sands Heritage was selected by the Council as the Dreamland  park operator almost two years ago and the fact that the Trowers and Hamlins legal advice was an important factor in making that decision, demonstrates that the advice has served its purpose. This fact should have caused Thanet Council to be more “inclined to disclosure” of the  Trowers and Hamlins legal advice. This does not appear to have been the case.

 
2.   Public Interest.

A)    Transparency.  The ICO states that there  is a general public interest in the promotion of transparency so as to demonstrate good decision making by public bodies. I would argue that, in this case, the duty to be transparent is much more important than usual. The Dreamland project was (and remains)  one of the largest projects undertaken by Thanet Council and is key to the regeneration of the district. Over the past 3 years there has been massive coverage of Dreamland  in the local, regional and national media and social media also. This is a project which is well known, particularly to most people living in the Thanet area, most of whom will have an interest in knowing whether the Council made good and effective decisions in its management of the project.

 
B)   Wrongdoing.  The ICO states that the suspicion of wrongdoing (not specifically criminal wrongdoing), is an important reason why information, including privileged information, should be released, particularly if this information helps to shed light on the alleged wrongdoing.

My understanding is that the Trowers and Hamlins legal advice was procured by Thanet Council specifically because concerns had been expressed about  Sands Heritage Limited  application to become the Dreamland Park Operator and that these concerns may have included allegations of wrongdoing.  For the Council to have commissioned the production of expensive legal advice can only mean that it felt that the concerns about Sands Heritage were plausible, although not proven. The disclosure of the Trowers and Hamlins legal advice will shed light on any potential wrongdoing and will demonstrate how effectively, or otherwise, Thanet Council managed these concerns.
 

C)   Resources and Money The ICO allows for the use of resources and money to be taken into account when assessing the strength of a public interest disclosure argument. In the case of the Dreamland project at least £8 million (possibly more) of council tax payers money has already  been invested in this project. An equal amount from the Heritage Lottery Fund and the Government Sea Change grant scheme which, to all intents and purposes,  is public money has also been invested in the project. Finally, compensation for the compulsory purchase of the Dreamland site has not yet been agreed with the former owners. It is speculated that this compensation could exceed £1 million which will have to be paid for by the council tax payers of Thanet.

Bearing in mind the massive amount of public money expended to date on developing and opening the Dreamland Amusement Park, the public have an extremely powerful interest in  knowing  if this money was spent wisely and effectively. This is particularly relevant to perhaps the most important decision of this project – the appointment of the Dreamland operator – Sands Heritage – and whether this decision was a wise decision. The disclosure of the Trowers and Hamlins legal advice would be absolutely critical in answering this question.

Furthermore, the fact that Sands Heritage narrowly avoided bankruptcy and was forced to enter into a £2.9 million Company Voluntary Arrangement with its creditors in December 2015, raises many questions about Thanet Council’s decision to appoint this company to be the Dreamland Operator and whether this decision represented best value for money. The disclosure of the Trowers and Hamlins legal advice would be absolutely critical in answering this question.
 

D)   Fair Treatment and Commercial Competition  I understand, although I do not know for a fact, that the concerns which led to Thanet Council securing legal advice  from Trowers and Hamlins  included allegations  that Sands Heritage may have enjoyed an unfair commercial advantage over its  competitors in its application to become  Dreamland Operator. The ICO specifically allows, as a reason for public interest disclosure, the publication of documents which demonstrate whether or not a public body has promoted and encouraged fairness and competition during a procurement process.  The disclosure of the Trowers and Hamlins legal advice would be absolutely critical in answering this question.
 

On the basis of the arguments I have set out above, I do not believe that Thanet Council has any lawful reasons to continue withholding the Trowers and Hamlins legal advice from me. I look forward to hearing from you.

2 comments:

  1. Well done Ian and astonishing that none of the councillors have supported your FOI. What are they all doing?

    Why are wells and fairbrass silent given they weren't elected when dreamland was happening - they seem mere lapdogs of the civil servants

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  2. Yep I would say emphasise, where appropriate, Sands SECOND application. Otherwise looks good.

    Contractually I think Sands application for the second round of tendering canceled their first application. So I suspect it was an unadvised TDC decision to re-introduce the spent application. Hence I suspect that decision was not with legal advice and TDC are using legal advice and professional privilege confidentiality as a smokescreen.

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