Summary

A recent ruling of the First-Tier Tribunal highlights the risk that information provided to public authorities may be made public. The case of London Borough of Southwark v The Information Commissioner, Lend Lease and another dealt with a viability assessment for a major London regeneration project at Elephant and Castle.

Overview

A recent ruling of the First-Tier Tribunal highlights the risk that information provided to public authorities may be made public. The case of London Borough of Southwark v The Information Commissioner, Lend Lease and another dealt with a viability assessment for a major London regeneration project at Elephant and Castle. In this case, it was not possible for a developer to keep confidential all of the contents of the viability assessment.The Tribunal ruled that the Environmental Information Regulations (EIR) applied to requests for disclosure of the assessment. These regulations implement an EU directive and provide everyone with a right of access to environmental information held by a wide range of public authorities.

There is an express presumption in favour of disclosure. However, the regime allows an authority to refuse a request for environmental information where specified exceptions apply. Even where an exception applies, the authority must consider whether in all the circumstances of the case, the public interest in refusing the request outweighs the public interest in disclosing the information.

The developer was able to prevent the disclosure of its financial model and certain information on commercial sales and rentals by relying on the exceptions relating to the protection of confidential commercial information and intellectual property rights. This overruled the decision of the Information Commissioner which had required the whole assessment to be made public. However, the Tribunal decided that other parts of the assessment must be disclosed to the public. This was because providing local people with access to information to allow them to participate in the planning process outweighed the rights of the developer to keep the information confidential.

Comment

Regrettably the Tribunal decision does not contain a detailed analysis of why the exceptions to disclosure were engaged; it seems to have taken these as read. Nor is there any great consideration of the application of the public interest test. Developers should proceed on the basis that the information contained in these assessments and other documents provided to public authorities is likely to be disclosed to the public. The same approach applies to other parties, such as joint venture partners and sub-contractors, who provide information that is then passed on to public authorities by another party, such as a developer. In this way, information provided to public authorities may end up in the hands of objectors and competitors. In drafting viability assessments, thorough consideration should be given to the exceptions from disclosure provided under the EIR. Where a developer believes an exception applies, it is advisable to mark the contents accordingly. This signals to the local authority that the public interest test must be considered before that material is disclosed.