Recently we reported on a case where the London Borough of Southwark was forced to disclose contract information in a planning matter. Below is a lawyer’s summary of the points raised by the judgment.

Of great interest is the section where it states clearly that a viability forecast comes under Environmental Information Regulations and not Freedom of Information. This may have implications for the case of EDDC v Information Commissioner where EDDC is refusing to disclose information about Knowle relication. EIR requires far more disclosure than FOI. Note also the remarks about transparency

The ICO heard the challenge to LB Southwark’s decision to refuse disclosure last year:

It accepted that disclosure of redacted elements of the reports would be commercially harmful. Nonetheless, applying the public interest test under the EIR regime, it decided that the interest in disclosure outweighed the harm. LB Southwark appealed the decision to the First Tier Tribunal, which has now held that:

The viability assessment is “environmental information” under the Environmental Information Regulations 2004.

The EIR regime operates with a presumption of disclosure, unlike the Freedom of Information Act 2000 regime.

Publication of viability forecast data relating to deals to be done with other businesses should not be disclosed, because the commercial harm was not in the public interest, but private sales and registered provider deals should be.

The ICO was wrong to refuse to treat Lend Lease’s development model as a “trade secret” and there was no need to show monetary loss arising from disclosure.

The Council’s suggestion of absolute confidentiality in relation to the activities of its staff was wrong. Likewise, there is not always a public interest in maintaining secrecy around public private partnership negotiations – the law on information disclosure is drawn to ensure transparency where it matters.

Disclosure of the starting point in negotiations (i.e. the initial viability reports) is not the same as the disclosure of the full continuum of those negotiations – the likelihood of a chilling effect on other deals should be viewed in that light. The public interest warranted disclosure of much of the information – given “the importance, in this particular project, of local people having access to information to allow them to participate in the planning process”. That factor was held to outweigh the public interest in maintaining the remaining rights of Lend Lease and those subcontractors who contributed to the document. –

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