GMB Makes Freedom of Information Request Regarding Brulines

23 Sep 2010

The GMB has made a Freedom of Information (FOI) request to the National Measurements Office (NMO) regarding Brulines’ application for the accreditation of their flow monitoring equipment. Brulines approach to NMO on a private basis is a cynical attempt on their part to enlist the support of the NMO for equipment the efficacy of which is facing numerous legal challenges across the country says GMB.

Paul Kenny, GMB General Secretary, has also written to NMO setting out GMB concerns and requesting a meeting with NMO on the issue. (A copy of his letter is set out below.)

A BIS report referred to accuracy and reliability of the Brulines flow monitoring equipment. In response earlier this year the Government said, “It is right that monitoring equipment of this type should be accurate and reliable. Government is clear that the industry should voluntarily ensure that all such measuring equipment is calibrated by the National Measurements Office. However should the industry fail to do so within a reasonable timeframe this will result in Government prescribing the equipment to ensure fairness.”

GMB, in November 2009, released a summary of an assessment of Brulines equipment in a report by SGS which was commissioned by Fair Pint.

Paul Kenny has written as follows to NMO. “It has come to my attention that the NMO has been asked to carry out a private evaluation of Brulines measuring equipment, and that this process is now ongoing.

It is of very grave concern to the GMB that many of our members are being evicted from their pubs, and facing heavy and punitive fines as a result of Brulines data. We have ample evidence that Brulines data is not accurate and can be affected by numerous factors whilst in use. It is a fact that the data can be manipulated on transmission and when compiled by Brulines and that numerous test cases are already before the courts questioning the validity of the data, and the use to which it has been put. Several judges have already indicated that they accept that the facts do not match Brulines assertions about the accuracy of the data.

In our view it is this opening up of the debate about the accuracy of Brulines equipment, that has caused Brulines to come to you and ask for a private testing regime. They are seeking your endorsement to put extra pressure on courts to accept without question the validity of their data.

As a regulator, and expert, it is unconscionable that the NMO could be carrying out private testing of this equipment under parameters and circumstances agreed with Brulines, without hearing evidence of the numerous issues with the installation, operation and management of Brulines equipment by the company, as well as the manipulation of data, and considering whether these additional factors should be taken into account.

I am writing to ask that you agree to a meeting with us, so that we can provide you with some of the mountains of evidence, expert, and from publicans themselves, that illustrate the numerous circumstances where Brulines equipment is ineffective and inaccurate, when in use outside of laboratory conditions. We have also collated data from Trading Standards Officers around the country showing substantial variances in the accuracy of the equipment, which we would ask to share with you.

We regard Brulines approach to you on a private basis as a cynical attempt on their part to enlist the support of the NMO for equipment, the efficacy of which is facing numerous legal challenges across the country.

We would urge you to open up this matter to public scrutiny and allow the submission of evidence, which will allow you to consider this highly contentious matter in the broader public interest.

Pubs across the country are closing down with tenants losing their livelihoods, in part due to the absolute reliance of the Pub Companies on Brulines assertion of the 100% accuracy of their data.

It would be a scandal for the reputation of the NMO to be tarnished by this matter because work is carried not subject to public scrutiny, and without the consideration of the wealth of additional evidence.

We very much hope that the NMO will agree to a wider consideration of this matter.”

Contact: Hayley Brennan, GMB Lead Organiser for Pubco Tied Tenants on 07850 919 933

Copy of letter to NMO re FOI on 21 September 2010

Mr. David Williams , Agency Records Officer , National Measurement Officer, National Measurement Office, Middlesex ,TW11 OJX

Dear Mr Williams

Request for information pursuant to section 8 of the Freedom of Information Act 2000.

This letter constitutes a formal request for information. The request is made pursuant to s.8 of the Freedom of Information Act 2000 (“the Act”). My address for correspondence is as set out below (which is the proper address for service of any fees notice pursuant to s.9 of the Act). Pursuant to s.11 of the Act I would prefer the information to be provided in permanent form or, if that is not reasonably possible, by the provision of a reasonable opportunity to inspect a record containing the information.

I understand that both Brulines Limited and Smart Cellar Limited have applied to your organisation with a view to securing accreditation for certain aspects of their flow-monitoring equipment. I would like the following information to be disclosed: all information contained in any paperwork or electronic information lodged by or on behalf of Brulines or SmartCellar which comprises or supports their applications for approval/accreditation of them or their equipment. In these regards please note that:

a) Section 43(1) of the Act is not engaged for reasons including the following[1][1]

(i) intellectual property rights are generally not confidential (registered rights such as patents, trademarks and registered designs are put in the public domain when they are registered); and

(ii) devices like flow-metering equipment and electronic transmitting devices are relatively simple devices, easily re-engineered, with numerous substitute options in the public domain.

b) The information is not commercially sensitive and section 43(2) of the Act is not engaged because the risk of the possibility of any prejudice to any party is hypothetical and remote, whereas for the exemption to be engaged the risk of the possibility of prejudice must be real and significant, and such that there “may very well” be prejudice (see R (Lord) v Home Office [2003] EWHC 2073, followed by the Information Tribunal in John Connor Press Associates Limited v ICO)[2][2]

c) Even if section 43 had been engaged, it does not contain an absolute exemption, but rather the test as to whether the exemption applies depends on whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

In the light of the Government’s recent response to the BIS Committee’s various reports and comments on this question[3][3] and a recent court decision concerning the validity of Brulines information[4][4], it is plain that the public interest favours disclosure. In particular, the release of information would plainly;

(i) further the understanding of, and participation in the debate of issues of the day, including in particular the validity of Brulines and SmartCellar information; , it is plain that the public interest favours disclosure. In particular, the release of the information would plainly:

(ii) facilitate the accountability and transparency of your organisation for decisions taken by it; and

(iii) allow individuals to understand decisions made by your organisation affecting their lives and assist them to challenge those decisions.

In any event, the use of the word “outweighs” in the public interest test means that the test is weighted in favour of disclosure in any event; and

d) If contrary to our earlier points in this letter, your organisation nevertheless considers that some of the information requested is exempt, then only that information should be exempted and redacted and all other information should be disclosed in any event.

I look forward to hearing from you with the requested information within the next 20 days.

Yours sincerely

Barry Smith, GMB Legal Officer

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