Breckland District Council v The Information Commissioner & Anor.
[2023] UKFTT 103 (GRC)
South Gloucestershire District Council v The Information Commissioner & Anor
2 December 2022
[2022] UKFTT 445 (GRC)
First-tier Tribunal
The council didn't have to share secret emails about buying land for a train station car park. Keeping those talks private while they were happening was more important than making them public, especially because it involved a lot of taxpayer money.
Key Facts
- •South Gloucestershire District Council (Council) refused a request by Mark Smyth-Roberts for information relating to a proposed railway station car park under the Freedom of Information Act 2000 (FOIA).
- •The Information Commissioner (IC) found the Council had breached the Environmental Information Regulations 2004 (EIR) and ordered disclosure.
- •The Council appealed, arguing the information was protected under EIR regulation 12(5)(e) (confidentiality of commercial information).
- •The disputed information consisted of emails and attachments concerning land purchase negotiations between the Council and a landowner.
- •The negotiations were ongoing at the time of the request.
- •The IC initially found against the Council but later conceded that regulation 12(5)(e) was engaged.
Legal Principles
Exceptions to the duty to disclose environmental information under the EIR.
Environmental Information Regulations 2004
Four-stage test for applying regulation 12(5)(e): (1) Is the information commercial or industrial? (2) Is the information subject to confidentiality provided by law? (3) Was that confidentiality to protect a legitimate economic interest? (4) Would disclosure adversely affect that confidentiality?
Elmbridge Borough Council v Gladedale Group Limited EA/2010/0106
Presumption in favour of disclosure under the EIR; high threshold for justifying non-disclosure.
Environmental Information Regulations 2004
'Would adversely affect' requires that the adverse effect is identified and would occur, not merely could or might occur.
Mersey Tunnel Users v ICO and Halton Borough Council EA/2009/0001
Outcomes
The appeal is allowed.
The Tribunal found the four-stage test under regulation 12(5)(e) was satisfied. The information was commercial, subject to confidentiality protecting legitimate economic interests, and disclosure would adversely affect that confidentiality. The public interest in maintaining confidentiality during ongoing negotiations outweighed the public interest in disclosure.
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