St Peter Foul Sewer and storage tank

​​​​Request ​856475091

FOI Request Title: Financial Expenditure, Penalty Clauses, and Overrun Costs – St Peter Foul Sewer Project Information.

I&E contract number: 11946/01, planning application number P/2024/1285.

Requested: Regarding the ongoing foul sewer and storage tank infrastructure project located at and adjacent to La Retraite, I request the following recorded financial information held by the Department for Infrastructure and Environment:

1

Total Spend to Date: The total cumulative financial expenditure invoiced by, or paid to, the main contractor (ROK) and any subcontractors for this specific project from its commencement to the date of this request.

2

Original Budget vs. Current Spend: A copy of the original contract value awarded for these works, alongside the total value of any financial variations, contingency drawdowns, or additional cost approvals signed off to date.

3

Overrun Financial Records: Any recorded financial data detailing the specific costs associated with project delays, including extended site cabin rentals, extended machinery hire, and prolonged labour costs caused by the timeline extensions from project start date to the present date.

4

Liquidated Damages / Penalty Clauses: Any recorded correspondence or meeting minutes determining whether liquidated and ascertained damages (LADs) or non-completion penalties are being leveraged against the contractor for timeline failures.

Response

1, 2 and 3 

The requested information regarding total spend to date, original Budget vs current spend and any project delays is exempt under Article 33(b) (Commercial Interests) and Article 35 (Formulation and Development of Policies) of the Freedom of Information (Jersey) Law 2011 as these are considered commercially sensitive while the project is still on going.

Article 33 and Article 35 are qualified exemptions; therefore, public interest and prejudice tests have been applied and are shown at the end of this response.

4 

The Scheduled Public Authority (SPA) does not hold any meeting minutes regarding whether liquidated and ascertained damages (LADs) or non-completion penalties are being leveraged against the contractor for timeline failures. Therefore, Article 3 of the Freedom of Information (Jersey) Law 2011 applies.

Under the Freedom of Information (Jersey) Law 2011 (“the Law”), a Scheduled Public Authority (SPA) may refuse to supply information if it estimates that the cost of doing so would exceed the amount prescribed by the relevant Regulations.

To provide information any recorded correspondence determining whether liquidated and ascertained damages (LADs) or non-completion penalties are being leveraged against the contractor for timeline failure, it is considered that the time taken to:

(a) determine whether the scheduled public authority holds the information;

(b) locate the information, or a document which may contain the information;

(c) retrieve the information, or a document which may contain the information; and

(d) extract the information requested,

would exceed the amount / time limit provided for such matters under the Regulations. Accordingly, Freedom of Information (Jersey) Law 2011, Article 16 has been applied.

Articles applied

Prejudice and Public Interest tests (35 & 33(b))

Application of Article 33(b) – Commercial Interests

The requested information contains commercially sensitive material relating to various costs regarding on going St Peter Foul sewer and storage tank project and Article 33(b) applies where disclosure would, or would be likely to, prejudice the commercial interests of any person, including the public authority.

Disclosure would be likely to harm the commercial position of the parties involved by revealing sensitive details such as contractual terms and or negotiation strategies as well as the project costs before its conclusion . This could place those parties at a competitive disadvantage in the marketplace and undermine their ability to negotiate effectively in current or future commercial engagements.

In addition, release of this information could prejudice the public authority’s own commercial interests by weakening its negotiating position and reducing its ability to secure best value in procurement or contractual arrangements.

The identified harm is both real and substantial, and there is a clear causal link between disclosure and the likely prejudice to commercial interests.

Application of Article 35 – Formulation and Development of Policies

The information also relates to ongoing policy development and internal deliberations concerning the ongoing project. Article 35 is engaged where disclosure would, or would be likely to, prejudice the formulation or development of policy.

Disclosure of this information at this stage would be likely to inhibit the free and frank exchange of views between officials and decision-makers. The material reflects evolving positions, options under consideration, and internal advice that has not yet been finalised. Premature disclosure would undermine the “safe space” required for effective policy formulation, as stakeholders may become less willing to express candid opinions if such views are subject to public scrutiny before decisions are reached.

There is a real and significant risk that disclosure would distort public understanding by presenting incomplete or provisional information, potentially leading to misinformed debate and external pressure that could adversely affect the integrity and effectiveness of the policy development process.

Accordingly, it is considered that disclosure would be likely to prejudice the formulation and development of policy within the meaning of Article 35.

Conclusion of Prejudice Test

For the reasons outlined above, it is considered that:

Disclosure would be likely to prejudice commercial interests (Article 33(b)). Disclosure would be likely to prejudice the formulation and development of policy (Article 35); and

Both exemptions are therefore engaged.

While there is a public interest in transparency and accountability, particularly in relation to policymaking and the use of public funds, this is outweighed in this case by the strong public interest in:

Maintaining the integrity of the policy development process; and

Protecting commercially sensitive information to ensure fair competition and effective use of public resources

Article 33 - Commercial interests

Information is qualified exempt information if –

(a) it constitutes a trade secret; or

(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Public interest test

In applying this article, the following considerations were considered.

Public interest considerations favouring disclosure

Disclosure of the information would support transparency and promote accountability to the general public, preventing misuse of public contracts and favouritism.

Disclosure would also promote trust in the Scheduled Public Authority (SPA) by showing openness

Public interest considerations favouring withholding the information

• The disclosure of and work plans could potentially disadvantage the contractor’s and the SPA’s ability to retain commercial advantage in any future processes.

• This could also result in the SPA’s inability to secure best value for the taxpayer and this will likely prejudice the SPA as its bargaining power decreases.

• The disclosure of the current costs prior to conclusion of the project may result in misinformed public debate regarding the cost to date. Therefore, this could jeopardise the business relationship between the SPA and the contractor.

• The disclosure of the costs to date can invite undue interference from third parties who may misinterpret current cost information or attempt to influence operational decisions, disrupting service delivery. For example, public stakeholders may react to perceived budgets or current costs without understanding the technical or regulatory rationale, causing unnecessary delays or conflicts.

Considering all considerations above, while transparency and accountability is important, the public interest in disclosure must be weighed against potential harm caused by prejudice of the commercial interests and the risks of misinformation.

The SPA has concluded that, on balance, the risk of causing harm caused by prejudice of the commercial interests and or concerns or spreading misinformation, the public interest in maintaining the exemption outweighs the benefits disclosing the information

Article 35 - Formulation and development of policies

Information is qualified exempt information if it relates to the formulation or development of any proposed policy by a public authority.

Public Interest test

In applying this article, the following considerations were considered.

Public interest considerations favouring disclosure

• Disclosure of the information would support transparency and promote accountability to the general public, providing confirmation that the necessary budgets are being met for the project.

• Disclosure to the public fulfils an educative role about the early stages in policy development and illustrates how the costs are being managed.

Public interest considerations favouring withholding the information

• In order to best develop policy and provide advice to Ministers, officials need a safe space in which free and frank discussion can take place – discussion regarding the monitoring of the ongoing costs and budgets is considered as integral to policy development as iterations of documents are demonstrative of the policy development process.

• The need for this safe space is considered at its greatest during the live stages of a policy.

• The release of the information without comprehensive interpretation alongside other data could impact the general public with misinterpretation and generate misinformed debate. This would affect the ability of officials to consider and develop policy away from external pressures, and to advise Ministers appropriately.

• Premature disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider departmental business.

Considering all considerations above, while transparency is important, the public interest in disclosure must be weighed against potential harm caused by distress or misinformation.

It should also be noted that once a policy is formulated and published, the public interest in withholding information relating to its formulation is diminished, however, the use of the exemption can be supported if it preserves sufficient freedom during the policy formulation phase to explore options without that process being hampered by some expectation of future publication.

The SPA has concluded that, on balance, the risk of causing significant concerns or spreading misinformation, the public interest in maintaining the exemption outweighs the benefits disclosing the information.

Article 3 - Meaning of “information held by a public authority”

For the purposes of this Law, information is held by a public authority if –

(a) it is held by the authority, otherwise than on behalf of another person; or

16 A scheduled public authority may refuse to supply information if cost excessive

(1) A scheduled public authority that has been requested to supply information may refuse to supply the information if it estimates that the cost of doing so would exceed an amount determined in the manner prescribed by Regulations.[2]

(2) Despite paragraph (1), a scheduled public authority may still supply the information requested on payment to it of a fee determined by the authority in the manner prescribed by Regulations for the purposes of this Article.

(3) Regulations may provide that, in such circumstances as the Regulations prescribe, if two or more requests for information are made to a scheduled public authority –

(a) by one person; or

(b) by different persons who appear to the scheduled public authority to be acting in concert or in pursuance of a campaign,

the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.​