Our Ref:         FOI-0675-2021

Thank you for your request received on 23 July 2020 asking for information about the government funding received by Transport for London (TfL) in May 2020. I apologise for the delay in our reply.

Your request has been considered in accordance with the requirements of the Freedom of Information (FOI) Act and our information access policy. I can confirm we do hold the information you require.

Please find the requested correspondence attached.

In accordance with the FOI Act, we are not obliged to supply some of the information contained within the correspondence as it is subject to a statutory exemption to the right of access to information under section 43(2) – prejudice to commercial interests and section 42 – legal privilege, as some of the information you have requested relates directly to the seeking, provision, and result of legal advice.

In this instance section 43(2) has been applied in part, to information whose disclosure would be likely to prejudice our commercial interests by hindering our ability to effectively negotiate future funding agreements. The correspondence you have requested contains detailed considerations of various scenarios that informed our negotiating position with Government including discussion of the hypothetical impact on financial stability, borrowing rates, contractual obligations and other commercial positions that could have been impacted by the outcome of the funding discussions.

Disclosing detailed background considerations around our negotiating position into the public domain would hinder our ability to effectively negotiate with Government in future, as it would ensure our internal position on various elements become known and thus weaken our ability to negotiate, which would have a clearly negative impact on our commercial interests.

Further, the correspondence also contains discussion around specific contracts and loan agreements which are ongoing and/or subject to future negotiation and disclosure of this information would also be likely to inhibit our ability to obtain best value for money by giving advance notice of its position and influencing future negotiations.

The use of this exemption is subject to an assessment of the public interest in relation to the disclosure of the information concerned. We recognise the need for openness and transparency by public authorities, particularly where the expenditure of public money is concerned, but in this instance the public interest in ensuring that we are in a strong negotiating position in our future discussions with Government, and that we are able to obtain the best value for public money, outweighs the general public interest in increasing transparency of our processes.

Section 42 of the Freedom of Information Act exempts legally privileged information, including legal advice, from disclosure under the FOI Act. There is a very strong element of public interest inbuilt into the concept of Legal Professional Privilege and this has long been recognised, by the Information Commissioner, the Information Tribunal and the courts, and it reflects the importance of legal advice being sought, and given, in confidence as a fundamental condition on which the administration of justice rests. There is an inherent public interest in TfL being able to obtain full and frank legal advice, and this is consistent with TfL’s responsibility to analyse and address legal risks and issues.

In accordance with our obligations under Data Protection legislation some personal data has been removed, as required by section 40(2) of the FOI Act. This is because disclosure of this personal data would be a breach of the legislation, specifically the first principle of Article 5 of the General Data Protection Regulation which requires all processing of personal data to be fair and lawful. It would not be fair to disclose this personal information when the individuals have no expectation it would be disclosed and TfL has not satisfied one of the conditions which would make the processing ‘fair’.

This exemption to the right of access to information is an absolute exemption and not subject to an assessment of whether the public interest favours use of the exemption.

If this is not the information you are looking for, or if you are unable to access it for some reason, please feel free to contact me.

Yours sincerely

Gemma Jacob
Senior FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London
[email protected]

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