Key Issue: Balancing Transparency and Commercial Confidentiality in Land Sale Disclosures under EIR Regulation 12(5)(e)

Citation: [2024] UKFTT 183 (GRC)
Judgment on

Introduction

The case of William Lloyd Davies v The Information Commissioner (Case Reference: EA/2023/0381, [2024] UKFTT 00183 (GRC)) revolves around an appeal against a decision notice by the Information Commissioner’s Office (ICO) regarding a Freedom of Information Act 2000 (FOIA) request modified by the Environmental Information Regulations 2004 (EIR). The appellant, Mr. Davies, sought the disclosure of commercially sensitive information from Carmarthenshire County Council, and the primary legal debate centered around the application of EIR regulation 12(5)(e) and the public interest test.

Key Facts

Mr. Davies requested details, including planning consultant reports and executive board minutes related to the sale of council land parcels. The Council disclosed some information but withheld certain details under EIR regulation 12(5)(e), citing adverse implications for the confidentiality of commercial interests. The ICO upheld the Council’s application of the regulation, identifying a breach regarding response delay but ultimately supported the withholding of information.

Environmental Information Regulations 2004

EIR regulation 12(5)(e) is pivotal in this case, allowing public authorities to refuse information disclosure if it would adversely affect the confidentiality of commercial information, provided said confidentiality aims to protect a legitimate economic interest. The engaged legal principles required the Tribunal to apply a four-stage test as endorsed by prior case law, such as Bristol City Council v Information Commissioner and Portland and Brunswick Squares Association (EA/2010/0012), assessing:

  1. The commercial or industrial nature of the information.
  2. Legal provision of confidentiality.
  3. Protection of legitimate economic interests.
  4. Adverse effects of disclosure on confidentiality.

Public Interest Test

Balancing the public interest in maintaining the exception against the interest in disclosure is mandatory, even when an exception applies. Regulation 12(1)(b) EIR instates a presumption in favour of disclosure, thereby setting a high bar for withholding information under the EIR exceptions.

Precedent

The appellant referenced Ryan v The Information Commissioner (2020), suggesting parallels and questioning the Commissioner’s reasoning similar to arguments made in that case. However, this Tribunal found those circumstances distinguishable from the current case, as per the peculiarity and potential impact on ongoing and future negotiations for the Council.

Outcomes

The Tribunal detailed the reasons for dismissal as follows:

  • The Council’s legitimate commercial interests were recognized.
  • Live negotiations for plot sales at the time of the information request warranted confidentiality.
  • The review of closed material revealed no evidence of Council misconduct.
  • The recognition that lower bid acceptance is a standard practice and can be justified on various grounds.
  • The public interest favored maintaining the confidentiality of the requested information. Thus, the Tribunal agreed with the ICO, finding no legal error or inappropriate use of discretion, and dismissed the appeal.

Conclusion

In sum, William Lloyd Davies v The Information Commissioner highlights the complexities of applying the EIR, particularly regulation 12(5)(e), and reinforces the importance of the public interest test. The case demonstrates the balance between transparency obligations and the protection of legitimate commercial interests of public authorities. This Tribunal’s decision underscores a presumption towards transparency while also acknowledging valid exceptions. Further, the Tribunal’s scrutiny of closed material and absence of detected wrongdoing enforces the lawfulness of commercial sensitivity in the context of public land sales.

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