E&T FOI Team Welsh Government Treforest – QED Centre Main Avenue Treforest Industrial Estate Ponty pridd CF37 5YR [email protected]. Rydym yn croesawu derbyn gohebiaeth yn Gymraeg. Byddwn yn ateb gohebiaeth a dderbynnir yn Gymraeg yn Gymraeg ac ni fydd gohebu yn Gymraeg yn arwain at oedi. We welcome receiving correspondence in Welsh. Any correspondence received in Welsh will be answered in Welsh and corresponding in Welsh will not lead to a delay in responding. Our ref ATISN 12453 Dear , Request for Information – ATISN 12453 I wrote to you on 12 July regarding your request for information on the FibreSpeed project. You asked for: 1. Dates, amounts and sources of both Welsh Government and European Union funding and what these were for, both for the original deployment and the ongoing operation of the FibreSpeed network, specifically what was paid for what and when, in line with the initial contract. 2. The initial proposition for the FibreSpeed network for both the original proposition from the start of the development of the project and also the fully developed proposition on which the tender was eventually issued. 3. The tender document. 4. Those who applied, specifically those who put in bids for the tender in order to compare what one was offering against another. 5. Information on any changes made to the FibreSpeed contract (following the initial contract to deliver the service between FibreSpeed/Geo/Zayo and the Welsh Government, were any amendments or exclusions made between that initial signing and now?). Specifically, how the contract between Hutchison/Geo and the Welsh Government has developed and any subsequent amendments to the original agreement and undertaking, for example, addition, removal or change of wording. 6. Information on the FibreSpeed benchmarking process and outcomes since the outset of the project, specifically: details of the process and how it works; what 7 August 2018
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Our ref ATISN 12453 - Welsh GovernmentOur ref ATISN 12453 Dear , Request for Information – ATISN 12453 I wrote to you on 12 July regarding your request for information on the FibreSpeed
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Rydym yn croesawu derbyn gohebiaeth yn Gymraeg. Byddwn yn ateb gohebiaeth a dderbynnir yn Gymraeg yn Gymraeg ac ni fydd gohebu yn Gymraeg yn arwain at oedi.
We welcome receiving correspondence in Welsh. Any correspondence received in Welsh will be answered in Welsh and
corresponding in Welsh will not lead to a delay in responding.
Our ref ATISN 12453
Dear , Request for Information – ATISN 12453
I wrote to you on 12 July regarding your request for information on the FibreSpeed project. You asked for: 1. Dates, amounts and sources of both Welsh Government and European Union
funding and what these were for, both for the original deployment and the ongoing operation of the FibreSpeed network, specifically what was paid for what and when, in line with the initial contract.
2. The initial proposition for the FibreSpeed network for both the original proposition from the start of the development of the project and also the fully developed proposition on which the tender was eventually issued.
3. The tender document.
4. Those who applied, specifically those who put in bids for the tender in order to compare what one was offering against another.
5. Information on any changes made to the FibreSpeed contract (following the initial contract to deliver the service between FibreSpeed/Geo/Zayo and the Welsh Government, were any amendments or exclusions made between that initial signing and now?). Specifically, how the contract between Hutchison/Geo and the Welsh Government has developed and any subsequent amendments to the original agreement and undertaking, for example, addition, removal or change of wording.
6. Information on the FibreSpeed benchmarking process and outcomes since the outset of the project, specifically: details of the process and how it works; what
Rydym yn croesawu derbyn gohebiaeth yn Gymraeg. Byddwn yn ateb gohebiaeth a dderbynnir yn Gymraeg yn Gymraeg ac ni fydd gohebu yn Gymraeg yn arwain at oedi.
We welcome receiving correspondence in Welsh. Any correspondence received in Welsh will be answered in Welsh and
corresponding in Welsh will not lead to a delay in responding.
areas are compared with where; is it always the same areas; who are they benchmarking against; is it wholesale, or retail; and if wholesale, at what tier.
I confirm the Welsh Government holds the information you have requested. For your first question, some of the information you have requested is already in the public domain, as follows: Information about EU funding for FibreSpeed is provided at: https://gov.wales/docs/wefo/publications/150407wefo-all-en.pdf Information about payments and payment dates is available at Annex C of the following previous FoI response: https://gov.wales/about/open-government/freedom-of-information/responses/2018/Apr18/atisn11914/?lang=en Other information we hold is provided at Annex 1 to this letter. We hold the following information in relation to your second question:
“Based upon the Broadband Wales Strategy 2005 to 2007 (published on 19th January 2005) the Broadband Wales FibreSpeed Project aims to meet the following objectives:
Deliver high-speed broadband services to strategic business parks and locations (where ‘high-speed’ is defined as a minimum of 10Mbit/s symmetric and capable of supporting Gbit/s requirements); and,
Ensure these services are available at affordable prices, benchmarked against London and South East of England.
Ensure that Wales has extensive geographic access to competitive wholesale infrastructure”
The tender document is given at Annex 2. I understand you already have a copy of the project agreement referred to in the tender document following its release under ATISN 11914. For your fourth question, I can advise that the companies who applied were: Geo; and Alcatel Lucent and Atkins. Your fifth request is being refused under Reg12(4)(b) of the EIRs, manifestly unreasonable for the reasons outlined at Annex 3. For your sixth question, I would refer you to Clause 13 of the 2007 contract, which I understand you already have a copy of following its release under ATISN 11914.
Rydym yn croesawu derbyn gohebiaeth yn Gymraeg. Byddwn yn ateb gohebiaeth a dderbynnir yn Gymraeg yn Gymraeg ac ni fydd gohebu yn Gymraeg yn arwain at oedi.
We welcome receiving correspondence in Welsh. Any correspondence received in Welsh will be answered in Welsh and
corresponding in Welsh will not lead to a delay in responding.
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, Welsh Government, Cathays Park, Cardiff, CF10 3NQ or Email: [email protected]. 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, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Provision of Subduct rights in Geo Duct – Betley to Manchester Telecity
Objective 1 Area – North Wales Business Park to St Asaph Business Park. Less 5% Retention
Objective 1 Area – Parc Menai to Parc Bryn Cegin. Less 5% Retention
Objective 1 Area – Parc Menai to Victoria dock. Less 5 % Retention
Network Design and Specification
Detailed Design Acceptance Objective 1 Area
Detailed Design Acceptance Non Objective 1 Area
Objective 1 Area – North Wales Business Park to St Asaph Business Park. Less 5% Retention
Objective 1 Area – Llandudno Junction to North Wales Business Park. Less 5% Retention
Objective 1 Area – Parc Menai to Victoria Dock. Less 5% Retention
Parc Menai to Parc Bryn Cegin. Less 5% Retention
Parc Caer Seion to Llandudno Junction. Less 5% Retention
St Asaph Business Park to Deeside Industrial Estate. Less % Retention
Llandudno Junction to North Wales Business Park. Less 5% Retention
Interim Material Milestone
Submilestone 6b(2) – Llandudno Junction to North Wales Business Park. Less 5% Retention
Parc Menai to Victoria Dock. Retention withheld from Invoice 10 and Invoice 2
Milestone 4a – Parc Bryn Cegin to Parc Caer Seion. Less retention @ 5%
St Asaph Business Park to Deeside Industrial Estate. Less 5% Retention
Milestone 3b(2) – Parc Menai to Parc Bryn. Retention in 3a and Retention in 3b(1)
Milestone 51b(2) – St Asaph Business Park to Deeside Industrial Estate. Retention on 51a. Retention on 51B1. Less materials already invoiced (INV 21)
Milestone 6c – Llandudno Junction to North Wales Business Park. Retentions due on 6a, 6b1, 6b2. Less materials already invoiced (INV 21)
Milestone 1a(1) – Parc Cybi to Parc Menai. Less 5% Retention
Milestone 4b – Parc Bryn Cegin to Parc Caer Seion. Less 5% retention
Milestone 24b – Victoria Dock to Telecity Manchester (Network Resilience) Less retention @ 5%
Material Milestone 106
Parc Menai access network less retention at 5%
Material Milestone 101
Milestone 5a(2). Less Retention. Less Allocation of Material Milestone (100 & 101)
Material Milestone 102 Material Milestone 103 Material Milestone 104 Material Milestone 105
Milestone 4c1. Less 5% Retention
Milestone 11a – Parc Bryn Cegin. Less 5% Retention
Milestone 81
Milestone 18
Recharge of legal costs for renegotiation
Milestone 10b. Less 5% Retention
Legal Fees in association with renogotiation, for the period 28th Feb 2008 to 28th March 2001
Milestone 1a2
Milestone 15a Park Fibre Build. Less 5% Retention
Milestone 11b. Less 5% Retention. Less Material Allocation
Milestone 9b. Less 5% Retention
St Asaph Facility Build. Less 5% Retention. Less materials already invoiced
Milestone 58c. Less 5% Retention. Less material allocation
Milestone 58B. Less 5% Retention. Less material allocations
Milestone 58B. Less 5% Retention. Less material allocations
Milestone 57B – Section 2 Wrexham Indust. Less 5% Retention. Less material already invoiced
Milestone 57C. Less 5% Retention. Less material already invoiced
Milestone 57a. Less 5% Retention. Less material already invoiced
Milestone 56a. Less 5% Retention. Less material already invoiced
Milestone 9c – Victoria Dock. Retention held on Milestone
Milestone 10c – Parc Menai. Retention held on Milestone
Milestone 12a Milestone 12b Less material allocation against 12b Milestone 12c
Milestone 8a – Parc Cybi Milestone 8b – Parc Cybi Milestone 8c – Parc Cybi Less Material Milestone
Milestone 15c St Asaph. Retention Held on Milestone
Milestone 11c. Retention Held on Milestone
Milestone 9a – Victoria Dock
Milestone 4c2 – Parc Bryn Cegin to Parc Caer Seion. Retention held on Milestone
Milestone 14a Milestone 14b Less material allocation on 14b Milestone 14c1 Milestone 14c2
Change Control on Milestone 11c
Milestone 16
Milestone 17
Milestone 19
Milestone 20
Milestone 21
Milestone 23
Milestone 24a – Network Resilience
Milestone 5a3 – Parc Caer Seion to Llandudno Junction. Retention held on Milestone
Retention on Milestone 1b
Milestone 1c – Ty Mawr to Parc Menai Retention held on milestone
Milestone 1b-Ty Mawr to Parc Menai Less retention
Milestone 26 Clbyn Ind’ Estate
Milestone 27 Llangefni
Milestone 27 Llangefni
Infrastructure Rights
Milestone 51d2 Retention Held on 51d1 (Inv 47) Less materials allocation
Milestone 51e Milestone 51e
Milestone 52b2 (includes credit of £360 incorrectly billed on 52b1 – Inv 46) Retention held on MS 52BLLess materials milestone allocation
Milestone 57d Less materials allocation Retention on 57a Retention on 57b Retention on 57c
Milestone 53 Less materials milestone allocation
Milestone 54 Less materials milestone allocation
Milestone 55 Warren Hall to Wrexham Tech’ Park Less materials milestone allocation
Retention on MS52a
Milestone 56b – Wrexham Tech Park to Wrexham Ind Estate. Less Materials milestone allocation
Milestone 56b – Wrexham Tech Park to Wrexham Ind’ Estate Less materials milestone allocation
Balance of retention on MS1
Retention on MS56a
Milestone 58d – Betley to Manchester Less material milestone allocation
Milestone 64a – Deeside Ind Estate Less retention
Infrastructure rights at Victoria Docks
Recharge of legal fees for renegotiation
Milestone 25
Mold build cost less 5% retention
Infrastructure rights at St Davids
Stone Wall at Parc Cybi
Fibrespeed Doc Folder X 4000 Fibrespeed A5 Landscape flyer x3000 Fibrespeed A4 Brochure (En) x2000 Fibrespeed A4 Brochure (Cy) x 500 A6 Advertising Notepad X1000 Isis ball pen X2000 Golf Umbrella X 200 Delivery and set up Asst Mens and Ladies Polo Shirts X100
61A – Wrexham Ind Est’ Fibre
62A – Hawarden Bus’ Park Fibre 62B – Hawarden Bus’ Park Facility Build 62C – Hawarden Business Park Tower / Compound 63A – St Davids Park Fibre 63B – St Davids Park Facility Build 63C – St Davids Park Tower Tower / Compound 64B – Deeside Ind’ Est’ Facility Build 64C – Deeside Ind’ Est’ Tower / Compound
WP027 – Llangefn
Chester Races
Milestone 65(1) Wrexham Active Equip
60a – Wrexham Tech’ Park Fibre 20% complete 73c – Mold complete 73d – Mold complete 60b – Wrexham Tech’ Park Facility Build 80% complete 60c – Wrexham Tech’ Park Tower/Compound 50% complete 68 – Wrexham Tech’ Park B side active 61B – Wrexham Ind’ Estate Facility Build 80% complete 61C – Wrexham Ind’ Est’ Tower/Compound 50% complete Interim Milestone 64c(2) – Tower 40% complete
Milestone 30H – Victoria Dock, Carillion Duct Saron – Lon Cefn Glyn (40% completion track and box build) Milestone 30I - Victoria Dock, Carillion Duct Lon Cefn Glyn – Govt infrastructure Milestone 30K – Victoria Dock, Carillion Duct Materials mobilisation for sub duct, cable & splicing accessories (change control)
Milestone 30C Victoria Dock, Carillion Duct Tanrallt Interconnect Ffordd Eryrl (80% completion track and box build) Milestone 30E - Victoria Dock, Carillion Duct Ysbyty Eryrl – Ffordd Pant/ Lon Parc Milestone 30F – Victoria Dock. Carillion Duct Ffordd Pant/Lon Parc Llanfaglan (50% completion track and box build) Milestone 30G – Victoria Dock. Carillion Ducr Llanfaglan – Saron (40% completion track and box build)
Milestone 31 A Llandudno Junction Supply of Materials
Milestone 60A – Wrexham Technology Park Fibre
Customer Connection Operating Support Operational Year 1 Quarter 4
Operating Support for Quarter 4 of Operational Year 1 Credit issued as a result of recalculation phasing. Maximum Operating Support in accordance with invoices issued in previous quarters.
Redwither Waterproofing Rewither Waterproofing Crane Hire Acquisition costs
Op.support Q3 - install
Operating Support for Cibyn & Llangefni WPOs for Operational Year 1 Quarter 4
Operating Support on IBO for Quarter 4 of Operational Year 1
Change Conbtrol – FS/CC/09 Sub Duct, Cabling, Splicing and Testing Victoria Dock to Aberdesach Milestone 31K
Main Operating Support Q2 Yr2
Customer Connections Operating Support Q1 and 2 Operational Year 2
Customer Connection Support Op Year 2 Q3
Main operating Support Bangor University Public Sector Benefit (Bangor)
Change Control: FS/CC/108 Installation of Primary Duct – Garth Road
Milestone 31B Llandudno Junction Passive Works Milestone 31C Llandudno Junction Active Works
Milestone 87
Q4 Operational Year 2: Customer Connection Support
Operational Year 3: Quarter 1 IBO/WPO Operating Support
Operational Year 3: Q1 Customer Connection Support
CR : FS/CC/115 Wrexham to Deeside upgrade
Operational Year 3: Q2 connection support
FS/CC/117 Parc Cybi Tower Extension
Operational Year 3: Quarter 2 IBO/WPO Operating
Opertional Year 3: Quarter 3 IBO/WPO Operating Support
FS/CC/116 Additional Batteries for Parc Menai Strategic Site
Operational Year 3 Q3 Customer Connection Support
Pwllheli POP Design & Upfront Preparation Costs
Operating Support invoice calculated in accordance with Schedule 5 notwithstanding the position set-out by Fibrespeed in respect to the Revenue Shortfall in the Operational Year 3 report
Customer Connections Operational Support Op Yr 3 Q4
Full Operating Support Op Yr4 Q1
Cost in relation to Settlement and Restructuring Agreement in accordance with clauses
12.1.3(a)
Full Operating Support Op Yr4 Q2
Customer Connections Operational Support: Operating Year 4 – Quarter 1
Project Canterbury Costs up to 30th September 2012 Legal Fees General Manager – July 12.25 days General Manager – July Expenses General Manager – Aug – 11 Days General Manager – Sep – 14 Days General Manager – Sep Expenses
Project Canterbury Costs up to 31st October 2012 Legal Fees General Manager 12 Days General Manager – Expenses
Project Canterbury Costs up to 30 November 2012 Legal Fees General Manager 17 Days General Manager – Expenses
Customer Connections Operating Support Operating Year 4 – Quarter 2
576772
Full Operating Support Op Yr 4 Q3
Project Canterbury Costs up to 31 December 2012 Legal Fees General Manager 11 Days General Manager – Expenses
Customer Connections Operating Support Operating Year 4 – Quarter 3
Core Services Transition Fixed Cost
Full Operating Support Operating Yr 4 Q4
Customer Connections Operating Support Operating Year 4 – Quarter 4
Deed of variation E Non-Commercialised Assets Decommissioning Maintenance charge 1st April 2013 to 31st March 2014
Deed of variation E Non-Commercialised Assets Decommissioning Maintenance charge 1st April 2014 to 31st March 2015
Telecommunications Service
Telecommunications Service
Telecommunications Service
Telecommunications Service
Milestone 71 – Raglan site active equipment
Milestone 86 – Deeside Active Equipment
Milestone 69 – Hawarden Active Equipment
Change Control FSCC106 Menai Bridge Cable
WPO-04 Bangor – FSCC105 WPO-04 Bangor – FSCC109 Supply of Power to Llangefni CPoP WPO-04 Bangor – FSCC063 Hawarden Chambers
(d) in the case of a consortium each consortium member must sign in accordance
with the relevant instruction above. The signature clause should be repeated as
necessary.
All signatures must be witnessed. The submission should be signed by those persons who
will be signing the Project Agreement if the Tender is successful. Please indicate if this is
not the case and provide the names and position of the signatories to the Project
Agreement.
APPENDIX 3
PROJECT AGREEMENT
PLEASE SEE SEPARATE DOCUMENT (APPENDIX 3 – PROJECT AGREEMENT)
SUMMARY OF SCHEDULES TO THE PROJECT AGREEMENT AND RESPONSIBILITY FOR
COMPLETION
Schedule Responsibility
1 Key Requirements Compliancy Matrix
Government Bidders
2 Network Design and Specification Bidders
3 Network and Customer Management Systems
Bidders
4 Programme of Works Bidders
5 Pricing and Payment Schedule for Initial Build Obligation
Bidders
6 Acceptance Bidders
7 The Services; Service Levels Bidders
8 Wholesale Prices Bidders
9 Terms and Conditions for Services Bidders
10 Network RTU Government
11 Business Development Plan Bidders
12 Price Book Bidders
13 Pro-forma Design and Specification
Warranty Letter
Government
14 Conditions of Funding Government
15 Reverse Payment Regime Bidders
16 Government Responsibilities Bidders
17 Deed of Grant Government
18 Permitted Subcontractors Bidders
19 Insurance Provisions Bidders
20 Change Control Government
21 Reports Government
22 Contact Details Government/Bidders
23 Reserved Resources Government
24 Performance Bond Bidders
25 Guarantee by the Guarantor Government
APPENDIX 4 PROJECT AGREEMENT VARIATIONS
BIDDERS ARE REMINDED THAT THEY MAY ONLY PROPOSE VARIATIONS TO THE PROJECT AGREEMENT WHICH ARE IN THE AUTHORITY’S FAVOUR.
We confirm that we do not wish to propose any variations to the Project Agreement (please tick) We wish to propose the following variations to the Project Agreement (please tick)
Clause no. Proposed Amendment Rationale
APPENDIX 5
ADDITIONAL INFORMATION
The Government intends to evaluate any Supporting Information from the list below submitted by Bidders in accordance with Paragraph 9.7 and Appendix 1 to this ISFT. Save as relevant to the Project Agreement in relation to points 5.2, 5.5, 5.6, 5.9 and 5.10 below, any Supporting Information submitted by Bidders will be submitted on a non binding basis and not form part of the Project Agreement however, Bidders are reminded of their continuing obligations under the Declaration issued with the Pre-Qualification Questionnaire to supply information which is accurate and the Government’s discretion to disqualify any Bidder which provides false information. The Government reserves the right at its entire discretion to reject and not evaluate any information or part of any information submitted which purports to be acceptable Supporting Information from the list below but which the Government considers does not comprise the requisite character of the relevant document.
5.1 Evidence to directly support the FibreSpeed business case financial plan i.e. any letters
of intent or confirmed orders from service providers or other information which directly
supports the revenue projections of the Bidders business case;
5.2 Proposals should be provided which clearly detail how the Bidder intends to undertake
overall monitoring of FibreSpeed’s financial and operational performance over the life of
the contract using the KPI and reporting mechanism;
5.3 Evidence to support wider developmental aspects supported by FibreSpeed which are
aligned to the Government’s economic and strategic objectives for the project and
Wales as a whole;
5.4 Updated Vision statement;
5.5 Detailed CVs and track records for Key Contract Personnel;
5.6 Proposal for the Corporate Governance Structure of FibreSpeed (Project Board) and
demonstrate how the Bidder intends to interface with the Government’s wider
governance requirements;
5.7 Further details of the Bidders current position in relation to contracting arrangements
with subcontractors listed in Schedule 18 e.g. framework in place for call down of
works/goods/services, heads of terms signed etc;
5.8 A clear statement of the roles and responsibilities of all partners and sub contractors
evidencing the bidders ability to deliver the project for the Government on an “end to
end” basis through its full life-cycle i.e. Design & Build, Operations & Maintenance &
Wholesale Sales & Marketing;
5.9 Appendix 6 details the Government’s proposed position in respect of Clause 13 of the
Project Agreement – Variation and Benchmarking of Wholesale Prices. Bidders are
requested as part of their response to comment on the acceptability of the
Government’s proposal and outline any further changes that will improve the position
for the benefit of the Government and the Project as a whole;
5.10 Where relevant, details of the proposed delivery structure including nature of the
intended delivery vehicle, proposed shareholders, directors and proposed guarantor(s).
APPENDIX 6
VARIATION AND BENCHMARKING OF WHOLESALE PRICES
Variation of wholesale prices
FibreSpeed’s wholesale prices can be varied in two ways:
to enable prices to meet the Government’s pricing objectives for the Project; and
through the introduction of time-limited promotions – e.g. to promote take-up in the initial
period following commercial launch, or to stimulate take-up of a new product or service
Non-promotional price changes will be guided by price benchmarking (see below) and agreed by the FibreSpeed Project Board. Promotional prices will also be agreed by the Government through its participation in the Project Board.
Benchmarking of wholesale prices
Wholesale price benchmarking will be undertaken to determine whether FibreSpeed’s prices are similar to those in the benchmark locations (London and the South East of England), and to guide any required price changes.
The benchmarking will cover the minimum product set offered by FibreSpeed. It is anticipated that the benchmarking methodology will consider a range of comparable products from a number of operators in the benchmark locations. It is also anticipated that a ‘basket’ approach will be adopted where possible, i.e. where products exhibit similar characteristics and cost components. In this case, the price benchmark
will establish how the price of FibreSpeed’s basket of products should change rather than each individual price within the basket. There may be several baskets, and these may change over time in response to market developments. Promotions will not be included in the benchmarking but may act as a guide to inform where promotional prices should be set. The benchmarking may consider individual price components, or a combined ‘effective’ price, e.g. relating to total cost of ownership over a pre-determined time period, or equivalent annual cost. Due consideration will be given to certain cost components (e.g. distance dependency) to ensure that the benchmarking is meaningful. It is anticipated that price changes will only be required when the differences between FibreSpeed’s pricing and benchmarks exceeds a specified tolerance of plus or minus [10%]. The period of benchmarking will be as follows:
every 3 months in the first year following the launch of commercial services on the FibreSpeed
network
every 6 months in the second year
annually thereafter.
It is anticipated that an independent expert will undertake the price benchmarking activity who
will make recommendations to the FibreSpeed Project Board for any price changes. The Government acknowledges that prices in the City of London alone may not be representative of prices in other major UK metropolitan areas and this will be taken into account in the benchmarking.
The Government also acknowledges that there will be a trade-off between the benefits of lower prices (potentially higher take-up) and higher prices (potentially higher revenues and hence improved business case). It will be for the Project Board to determine how this trade-off is best managed.
ANNEX 3
CONSIDERATION OF EIR EXCEPTIONS
Regulation 12(4)(b) 1 of the Environmental Information Regulations does not oblige a public authority to release information where the request is ‘manifestly unreasonable’. The Regulation states: 12(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that – (b) the request for information is manifestly unreasonable This means that Reg 12(4)(b) can apply if the cost or burden of dealing with a request is too great, as confirmed in the Upper Tribunal case of Craven v The Information Commissioner and the Department of Energy and Climate Change [2012] UKUT442 (AAC): “Taking the position under the EIR first, it must be right that a public authority is entitled to refuse a single extremely burdensome request under regulation 12(4)(b) as “manifestly unreasonable”, purely on the basis that the cost of compliance would be too great (assuming, of course, it is also satisfied that the public interest test favours maintaining the exception). The absence of any provision in the EIR equivalent to section 12 of FOIA makes such a conclusion inescapable.” As explained in my letter to you of 12 July, in response to your request reference ATISN 12439, the Welsh Government does not hold in one place a database listing all amendments made to the original and subsequent contracts, meaning that I would need to review 1200 pages of information to highlight any amendments made and then give consideration as to whether or not that information can be released into the public domain. There are a number of amendments since 2007 I would need to identify and consider. Reviewing the considerable amount of detailed and complex information to determine what amendments have been made and whether or not it can then be placed into the public domain will involve a significant cost and unreasonable diversion of resources from the Division’s other work. The cost of dealing with your request is based on a standard rate of £25.00 per working hour, as set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. Based on a Freedom of Information request for the 2007 contract earlier in the year, I have estimated it would take me approximately 40 hours of my time to go through each page, clause by clause, to determine what amendments have been made since the original agreement and undertaking including addition, removal or change of wording and then determine whether the information can be released into the public domain. Additional time would need to be taken to consult with and consider the views of the affected third party on those parts of the contracts. I estimate that liaising with third parties, compiling the information and checking it prior to release would take me a further 15 to 20 hours. Not only would this work take me away from my core work, it would also mean diverting other members of staff away from their current duties in order for me to undertake this task.
I am therefore refusing your request under Reg12(4)(b) of the EIRs, manifestly unreasonable. In doing so, I have given consideration to the public interest in disclosing the information. The Welsh Government recognises the general public interest in openness and transparency and that releasing the information would help the public gain a better understanding of the requirements placed upon FibreSpeed Ltd. to deliver fibre network capacity to support the connectivity needs of Welsh businesses and the wider public. The Welsh Government also recognises the public has an interest in how their money is to be, or has been, used to ensure Government gets the best value from the public purse. However, the Welsh Government considers the balance of the public interest lies in favour of refusing your request. This is because it is believed your request would place a substantial and unreasonable burden on Welsh Government resources which are already stretched and on balance, it is considered the public interest would be better served deploying our resources in undertaking core work. As part of these considerations we have applied the statutory presumption in favour of disclosure under Reg12(2) of the Regulations but our view remains that the significant burden that this request would impose outweighs the public interest in releasing this information. FibreSpeed helps to ensure a competitive environment for high speed and high capacity fibre network services in the region. Any harm to FibreSpeed would be likely to prejudice this and lead to higher prices for connectivity for businesses, potentially harming their profitability. The Welsh Government is of the view that the amount of information already in the public domain satisfies the public interest in this regard, such as its response to ATISN 11914. Whilst highlighting amendments made in the very complex and detailed information contained in the contracts may be of interest to competitors of FibreSpeed Ltd., I do not believe there is any wider public interest in the Welsh Government expending a significant amount of its stretched resources in order to place such complex and detailed information into the public domain. The public will be assured that the Welsh Government monitors the performance of FibreSpeed Ltd.