ICO to vet Welsh broadband dispute

A decision by the Welsh Assembly Government (WAG) to not release the test methodology and raw test data for the £425m Superfast Cymru broadband project has been referred to the Information Commissioner’s Office.

The complaint stems from a claim by a junior minister that the project had led to more than 100,000 premises being connected at an “average speed of 61Mbps”. It is part of long-running scepticism that the contract will deliver what the WAG has claimed it will, and now subject to audit.

The claim, by deputy minister for skills & technology Ken Skates, was challenged by broadband consultant Richard Brown. Using the Freedom of Information Act, Brown asked the WAG to supply the methodology and the raw test data on which Skates based the claim.

The WAG refused, saying the information would be published at a later date. Brown asked for a review of the WAG’s decision.

Rob Hunter, director of finance and performance in the department of economy science and transport, again refused Brown’s request. He referred to the earlier reason for non-disclosure and added that the information, together with an explanatory narrative, will be published, “probably in summer”, together with a ministerial announcement.

“I am of the opinion that publicly releasing the raw material at this time, without the explanatory narrative and accompanying explanatory ministerial announcement, would cause disruption to the Welsh government’s pre-set programme and the ministerial process in relation to this work in that the raw information, if released prematurely, may be misconstrued and re-published by some, or extracts of the information re-published, in such an ambiguous way as to cause confusion amongst the public and cause disruption to the effective conduct of public affairs.

“To that end, I do not think it is reasonable in all the circumstances or in the public interest to release this information prematurely. Rather, I believe the public interest would be best served if the information were released alongside the ministerial announcement and consultation participation report so that the public can review the information in context. I am satisfied therefore that the balance of the public interest falls in favour of withholding the information.”

In his complaint to the ICO, Brown said, “It does not serve the public interest that a junior minister can make claims in a press release (that is subsequently printed in the press), [but] that the information for testing those claims is withheld until a later date.

“I have been separately informed that the test data is not formed in the manner that has been described, in so much as that the 100,000 connections are not live connections (as described by the junior minister in his release), but are (in the majority) simply theoretical tests that have taken place to establish the possibility of these connections and their speeds.

“Such theoretical connections belies the claim made by the junior minister that the connections are ‘live’ with an average speed of 61Mbps. As such the public interest is in fact damaged due to the claim likely being both false and misleading. The determination to publish the data at a later date, simply moves the ‘proof’ to a later date in an effort to minimise its relevance in informing the public interest.”

Brown noted that WAG had waited until the last possible day to reply to him. “I am of the opinion that this is contrary to the spirit of the act, and is contrary to the commissioner’s guidance, and furthermore is a deliberate attempt to prevent access to information that would be appropriate to informing the public interest.”

In support of his complaint Brown claimed that Hunter’s statement that premature publication could confuse the public was “simply without merit”.

He said, “If this were indeed the case, then a programmed press release by the junior minister would not be possible for precisely the reasons given for not substantiating the claim made by the same junior minister. Further, had the junior minister not made such a wildly unsubstantiated claim in the press, the public interest would not need ‘early’ access to the data to test the claim made.”

Brown believes that Skates’ claims cannot be upheld using the withheld data. The denial on the grounds of future publishing and the unnecessary use of the total time allowance for responses were an attempt “to obfuscate the correct and appropriate informing of the public interest” rather than trying to preserve such public interest as Hunter claimed.

“The commissioner will be aware that such actions are contrary to the act and the deliberate attempt to prevent the legitimate release of information that informs the public interest remains an offence under the act,” Brown said.

Questions raised over double-funding of Welsh broadband networks

Fibrespeed’s potential coverage area back in 2012. Source: WAG.

Maps showing that the Welsh Assembly Government’s (WAG) publicly-funded Superfast Cymru project supplied by BT will overbuild an existing publicly-funded network have led to questions about the legality of the £425m next generation broadband project.

Using post code data obtained under the Freedom of Information Act with the help of the Information Commissioner’s Office, broadband consultant Richard Brown has identified post codes included in the Superfast Cymru roll-out that are already covered by the £30m Fibrespeed network. He has asked the European Commission to investigate whether there has been a breach of the regulations.

Where BT plans to roll out Superfast Cymru. Source: WAG

BrokenTelephone reported in November last year that the WAG was seeking ways to overbuild Fibrespeed. At the time business, science and transport minister Edwina Hart said a change in the guidelines governing state aid for broadband might allow the overbuild, and promised to report back to WAG members.

Fibrespeed is owned by the WAG but supplied and operated under a 15 year contract by independent dark fibre network operator Geo (sold last week to US-based Zayo). It was to service 14 business parks in north Wales with an optical fibre trunk network at prices equivalent to London and the UK South-East, according to assembly member Lesley Griffiths, speaking in 2008. Local ISPs tapped spare capacity in the network to provide local residents with wireless connections starting from 2Mbps, providing a service BT could not match.

Brown asked Hart a year ago if Superfast Cymru would overbuild Fibrespeed. “At that time I received a statement from the business minister that she was satisfied that there was no overbuild, and the EU Commission received a similar reassurance that there was no overbuild and so chose not to pursue the matter any further,” he wrote to the commission.

On receiving the post code data for Superfast Cymru coverage areas, he tested them against those covered by Fibrespeed (see table).

“The original statement issued to me by the business minister, and subsequently affirmed by the EU Commission, was that the Fibrespeed project was specifically targeted at business parks in the north of Wales and, whilst resellers of the Fibrespeed capacity may have extended this network using alternative connection methods (wireless appears to be prevalent), no business park was to be covered by Superfast Cymru, and so no overbuild of the original public funded project would take place,” he said.
“LL17 OLJ is St Asaph Business Park. It is where Fibrespeed have their principal office of operations.”

Brown said, “It is clear that a deliberate attempt appears to have been made to misrepresent both the Fibrespeed and Superfast Cymru projects to the EU Commission for the purposes of securing additional (duplicated in part) public funding.
“Whilst the declared outcome sought (increased access of citizens to superfast broadband speeds) is of course laudable, the Superfast Cymru project itself is under scrutiny as to whether it can indeed deliver on this.”

Postcode	Served by Fibrespeed	Served by Superfast Cymru
LL77 7UR	Yes (case study)	Yes – released postcodes*
LL65 4RW	Yes (case study)	Yes – released postcodes*
LL12 0PG	Yes (case study)	Yes – released postcodes*
LL13 9XT	Yes (case study)	Yes – released postcodes*
CH5 2NR	Yes (case study)	Yes – released postcodes*
CH7 6HB	Yes (case study)	Yes – released postcodes*
LL57 4YH	Yes (case study)	Yes – released postcodes*
LL17 0LJ	Yes (case study)	Yes – released postcodes*

*released postcodes refer to a document which is the 54k (approx) postcodes that the Information Commissioner compelled the Welsh Government department to release to Brown that detail the target intervention areas of the Superfast Cymru project.