Elmbridge Borough Council v IC (Additional Party: Gladedale Group Limited) (EA/2010/0106) is the latest Tribunal decision concerning requests for information about planning applications (see my posts on other such cases here and here, and Anya’s post on an earlier important planning case here). In particular, the disputed information here comprised a viability report containing details on costs, revenues, values and finances of a development in the vicinity of Hampton Court. The Council pleaded commercial confidentiality and sought to rely on regulations 12(5)(e) and 12(5)(f) EIR. The Commissioner found that these exemptions were not engaged. The Tribunal agreed, and ordered disclosure.
In so doing, the Tribunal confirmed that the confidentiality of this information must be objectively required at the time of the request (rather than, for example, when the information was created or passed to the Council) in order to protect a relevant interest. The Tribunal also confirmed that it is not enough that some harm might be caused by disclosure, but that it is necessary to establish (on the balance of probabilities) that some harm to the economic interest would be caused by disclosure.
A crucial feature of this case was the lack of evidence offered to demonstrate commercial confidentiality or prejudice. The Tribunal observed that:
“Throughout the investigation and consideration of the issues leading to the Decision, the Respondent consistently and repeatedly sought evidence from the Appellant to support their contention that the subject information was commercially sensitive or that its release would be prejudicial to the third parties concerned. It is noted by this Tribunal that the information made available to the respondent amounts to assertions and speculation by the interested parties. There is a notable absence of independent or objective evidence to support the assertions or speculation put before the Respondent.”