There has been a very interesting recent decision by the Information Commissioner on a council's duty to disclose information under the EIR. The case involves Chichester District Council. The council had made a planning application for residential development of its own land at a local football ground. As part of the proposal, certain "off site" works were to be required including provision of sports pitches. The complainant sought disclosure of advice received by the council (primarily from its own officers) relating to the anticipated financial benefit to the council. Examples were the cost of provision of the new pitches (assumed to be ultimately borne by the council by way of impact on purchase price) and the final sale price expected.
The council resisted disclosure claiming a number of exemptions including that the information involved internal communications and that it should be regarded as confidential. The council maintained that information relating to land value and costs would damage the council's commercial interests if disclosed.
None of these arguments won the day. The ICO took the view that, for the exemption of confidentiality to apply, information must be held under a duty of confidentiality and it is not sufficient for the council to have regarded it as "confidential" in the absence (as here) of any actual duty. This was in effect the council's own information - unlike confidential information supplied by a developer in the context of the developer's planning application. In relation to the "internal communications" exemption, the ICO took the view that the public interest was strongly in favour of disclosure and referred to the value to the public of scrutinising a council's financial decisions and being able to balance the financial benefit against any environmental impact from the development.