Bath & North East Somerset Council v IC (EA/2010/0045) is the latest application of the ‘commercial confidentiality’ exemption under regulation 12(5)(e) EIR to a request for information on agreements between a local authority and a property developer.

 

The council and the developer entered into discussions about building homes on 70 acres of brownfield land within a UNESCO World Heritage Site. Only a small proportion of this land was owned by the council, the rest being owned by the developer, who would also bear 100% of the risk of the project. The proposed £500m project would deliver 50% of the council’s new homes target for the next 10 years – the council was therefore acting as both beneficiary and planning authority.

 

With a potential section 106 agreement in mind, the council and developer reached a co-operation agreement, whereby the developer taking an ‘open book’ approach, i.e. making its financial models and reports available to the council. This was the information at issue before the Tribunal.

 

The Tribunal found that the public interest favoured maintaining the exemption. In so doing, it distinguished this case from Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012) – on which, see my post here and article in the Local Government Lawyer here – where disclosure of the information was ordered. Bristol City concerned a viability assessment designed to show that a hypothetical scheme was not viable; that assessment used generic, industry-level pricing. In contrast, this case concerned detailed and developer-specific financial information about an actual proposal. The commercial sensitivities differed materially.

 

Disclosure of such information, held the Tribunal, would lead to the developer refusing to provide any further ‘open book’ information, which would stymie this particular development and dissuade developers from future ‘open book’ co-operation. The Tribunal was also impressed by the availability of alternative scrutiny mechanisms in this case. It was less impressed with the council’s argument that disclosure of the disputed information would damage its reputation with developers.

 

The Tribunal did order the disclosure of consultants’ reports and emails, with commercially sensitive information redacted. The developer’s financial model however, could not be redacted, and could be withheld. On this last point, a notable practical issue emerged: both the council and the Commissioner had interpreted the request as being for a static version of the developer’s financial model. A ‘live’ model – i.e. a spreadsheet containing visible formulae – is another matter. The Tribunal warned that in future cases, clarification should be sought from the requester.