You may recall this post from May 2010 flagging up the point that all information supplied to a local authority is potentially disclosable under the EIR.  A decision of the First Tier Tribunal last month again brings the issue into focus and my colleague, Jack Robinson, has looked into this to report as follows:

The London Borough of Southwark was asked for a copy of the financial viability assessment submitted with a planning application concerning redevelopment of Elephant & Castle's Heygate Estate.  The council refused.  The requestor complained to the Information Commissioner's Office (ICO), which ordered full disclosure of the viability report (minus any personal data)—and the council appealed to the Tribunal.

There is an exemption from disclosure for commercial confidential information—which this was—under EIR reg 12(5)(e).  However, for the exemption to apply, the public interest in keeping the information confidential needs to outweigh the public interest in disclosing the information.  

The Tribunal took a more nuanced approach than the ICO.  The assessment contained the developer’s development model.  This was a ‘trade secret’, and the harm disclosure would do to the developer’s own interests, taken alone, outweighed the public benefits.  Similarly, the developer’s sales and rental calculations were highly commercially sensitive, and disclosure would risk adversely affecting the project, or at least the delivery of its social content. The public interest balanced in favour of not disclosing that information.

However, the Tribunal held that the remainder of the assessment was less sensitive, and that it was important to allow local people access to the information, so that they could better participate in the planning process.  Moreover, the developer and its subcontractors would have been aware of the potential for disclosure to comply with FOIA or the EIR (in fact, the regeneration agreement’s confidentiality clause here expressly acknowledged that possibility).  The Tribunal therefore ordered that the remainder be disclosed.

This decision reaffirms, then, that:

  1. private sector partners are expected to be alive to the possibility of disclosure under FOIA/EIR; and
  2. even if the information requested is confidential commercial information under EIR reg 12(5)(e), that only goes halfway to preventing disclosure.  The public interest must also balance in favour of maintaining the confidentiality of the information.