Hackney: oh dear

Some of you may have been following my hassling of Hackney Borough Council about a request that I made under the Freedom of Information Act 2000. A potted history is as follows:

• 11 September 2006 - I posted about the fact that HBC had issued a press release about a settlement agreement with Nike about Nike's unauthorised use of the HBC logo. Nike paid Hackney £300k.
• At that time I made an FOIA request for a copy of the settlement agreement and the legal advice that HBC had taken.
• By late January 2007, I'd still not had a reply from HBC. Well overdue considering the deadline is 20 days from the request! My last post was on 29 January 2007.

Well, I did actually receive a reply from HBC by way of a letter dated 26 March 2007 from the Head of Law. I've just not got round to writing about it since then.

Anyway, this is what the letter said:

"Dear Mr Mills

RE: Freedom of Information Act Request

I refer to your Freedom of Information Act request that was made on 11th September 2006 concerning a request for information about the settlement agreement between Nike Corporation and the London Borough of Hackney. Please accept my delays in replying, however this matter has only recently been brought to my attention.

In reply to your request under the Freedom of Information Act 2000, our response is as follows:-

Your request for a copy of the Settlement Agreement

You may be aware that under the Freedom of Information Act 2000, the Act provides for disclosure of certain types of information but not necessarily particular documents, although on some occasions this may be the most convenient way to supply the information requested.

The Settlement Agreement between Nike Corporation and this Authority is confidential and we do not believe it is in the public interest to disclose it. However, we are able to release these terms which appear on our website and are summarised below:

Hackney Council and Nike have reached a mutually satisfactory agreement following Nike's use of the Council's logo on a limited range of sportswear. Nike agreed to pay the London Borough of Hackney £300,000 including legal costs and agreed to cease using the logo. The settlement was calculated on a licensing royalty arrangement and the money is intended to be spent on sports and leisure development in the Borough.

Request for the advice from Marks & Clerk on settlement

The advice which the Council received from Marks & Clerk, solicitors, on the Settlement Agreement is subject to Legal Professional Privilege and is exempt from disclosure under section 42 of the Freedom of Information Act 2000.

I trust that the above satisfactorily deals with your inquiry.

Once again please accept my apologies for the delay in replying

Yours faithfully..."              

In my post of 4 December 2006 I predicted that this would be how HBC would respond and my thoughts. Here are my further thoughts:

• Why do they mention the public interest? This is not a factor under the FOIA for confidentiality.
• Legal professional privilege under the FOIA is subject to the public interest test and yet HBC do not appear to have considered this at all in the context of the legal advice.

I'm writing back to HBC and this will be my reply:

"Dear Sir

London Borough of Hackney -v- Nike Corporation

Thank you for your letter of 26 March 2007 in response to my request under the Freedom of Information Act 2000 (the "Act"). I have considered your letter and wish to press you further about this. Taking each issue in turn:

Settlement Agreement

You do not say so in your letter, but I presume that you reference to confidentiality is to section 41 of the Act. This is an exemption that is not directly subject to the public interest test so I am not sure why you mention this in connection with a statement about confidentiality - please can you clarify?

So far as the wording of section 41 is concerned and in this context is can only apply to:

• Information that you have received from Nike; and
• The disclosure of that information would amount to an actionable breach of confidence.

Given that the substance of the agreement is in the public domain and we know who the parties are, who your lawyers were and the sums involved it is hard to see what other information that there might be in the settlement agreement that amounted to confidential information provided by Nike to the Council. I refer to you to the decision of the Information Commissioner in case FS5 0066753 (Derry City Council) where he referred to a lack of ability to identify information from the other party as such as to not engage the provisions of section 41.

Notwithstanding this, I anticipate that the settlement agreement might contain a confidentiality clause. If this is subject to "standard" exceptions then I would expect a provision that says some to the effect that neither party shall be in breach of the confidentiality obligation if it discloses the agreement in pursuance to a legal obligation. If that is the case, then your disclosure of the settlement agreement under a request under the Act will be such a disclosure in compliance with the law.

I further refer you to the Information Commissioner's decision in case FS50083667 (Tameside Metropolitan Borough Council) where, at paragraph 15, he said:

"However the Commissioner does not accept that a confidentiality clause will, per se, mean that all information caught by the clause should be, or will be considered confidential. To accept such a tenet would essentially allow public authorities to contract out of their obligations under the Act. The Commissioner will therefore look behind the clause to the nature of
the information concerned, with a view to considering whether the clause should stand for each particular section or topic."

Even if you think the provisions of section 41 actually might apply you still need to consider whether the information has the necessary "quality of confidence".

It is a matter of public record that the Council does not own any registered trade marks or registered designs that apply in the UK (have searched the applicable registers today) so one must is likely to conclude that the settlement agreement must have been made in contemplation of the Council taking an action for passing off and/or infringement of copyright.

Legal advice

Here you have quoted section 42 of the Act. This section is subject to the public interest test and you have not considered that at all in your response on this aspect of my request.

Given that the settlement agreement was concluded many months ago the disclosure of the advice that you received cannot have any impact on that settlement now, especially given that the Council publicised the settlement and has, presumably, received the monies. The payment made to the Council was made in connection with the "public asset" of, presumably, the Council's reputation and/or ownership of copyright or some other right. Given that it was a substantial sum of money the public ought to have a right to know whether Hackney had properly protected its assets and whether the settlement was a good one or not. This assessment cannot be made without sight of the legal advice.

Similarly, the Council has stated in its Corporate Business Plan 2007/8 to 2010/11 an achievement in 2006/07 that it "Challenged Nike for illegally using the Council logo". Given that "illegal" is a strong word and that Council is using publicly, the public must be entitled to know if that assertion about its past performance is a fair one or not or whether it is just "talking up" a good result.

The public interest in this case for disclosure clearly outweighs the case for non-disclosure.

Duty to assist and further request

As you know, the Council is under a duty to assist in this request. What other information do you have that you would be willing to disclose in connection with this? Please can you provide me with:

• How the Council became aware of Nike's activities?
• Did the Council write to Nike directly or did it instruct Marks & Clerk to do so? Please provide copies of the claim letter or claim letters;
• What was Nike's response to the claim letter or letters? Please provide a copy.

Conclusion
I invite you to reconsider the Council's position in the light of my comments. I would also like to ask you to remember that the Act presumes in favour of disclosure and that you are entitled, if you so wish, to decide not to seek to rely upon any exemption.

I look forward to hearing from you.

Yours etc"

I'll update when I get a further response. It might take a while though :-)

 

Comments

[Will Russell]

Andrew,

The saga continues! Do you think they will ever deem to give you a satisfactory response? More importantly will this occur in 2007?!

Will

[Quink]

Getting movement on any matter from Hackney Council is well nigh impossible if it doesn't suit them. I have had a wrangle over a planning matter since December 2005 - and still precious little has happened about it.