In Chichester District Council v Friel, Case No. EA/2010/0153, Decision on 16 March 2011, the First-Tier Tribunal was concerned with a request for information with regard to a planning application made by the Council to itself.  The Tribunal rejected arguments by the Council that EIR 12(5)(d), confidentiality, and 12(5)(e), commercial or industrial information, applied.  EIR 12(4)(e), however, internal communication, did apply to a valuation.  The issue therefore was as to the application of the Public Interest Test.  The Tribunal regarded the public interest in favour of disclosure as being enhanced by what it called (para 39) a “deficit of democratic engagement”.  The Tribunal observed (para 29) that whereas, prior to the major changes to local government in 2000, ward members were involved in a variety of decision making Committees, it was commonly the case now that almost all decisions are taken by a very small group of Councillors in Cabinet, and that the ability of Councillors not in Cabinet to scrutinise and thereby render accountable decisions taken which are not in the public domain relies upon either matters going to full Council or the Scrutiny & Overview Committee exercising their ‘call in’ powers. In the instant appeal the decision to sell the land for development had gone to Council in 2003. It had not since been before any Council or Committee meeting. Thus, as at the material time in mid-2009, there had been no formal Councillor review or input to this proposal for almost 6 years. Throughout this period, the issues as to sale, nature of development and planning permission had been dealt with at officer level.  Those opposed to the development were consistently and correctly told that financial viability was not a valid planning consideration and as such, they were told that their concerns in this regard, could not be taken into account.   This left the opponents at a loss as to when and how they could access information on this issue and when and how their concerns could be addressed and their views made known.

As to public interest factors against disclosure, the Council urged that, if disclosure was made, the Council would need to change its processes to its detriment. It was said that the Council would need to take decisions without the benefit of a valuation and/or the valuation would need to be in such vague terms as to be essentially worthless. This would inevitably, it was said, mean that the Council’s decisions would be less effective potentially to the financial detriment of local taxpayers.

As regards the possibility that the Council would change its practices as a result of disclosure, thereby impeding internal communications, the Tribunal (para 40) noted however that there was no evidence of this, merely speculation and assertion on the part of the Council. That this would follow, ignored the developments in local government since the introduction of FOIA and the EIR. The Tribunal expected authorities to understand by now that disclosure in an individual case was specific to the circumstances of that case. In that sense, disclosure under FOIA and EIR is never routine. In any event, any changes to procedure would still need to provide for elected members being properly informed of relevant matters in the decision making process. The Tribunal questioned whether the Council’s reluctance to make disclosure in this case was a product of an old orthodoxy that valuations will never, in any circumstances, be made public.

In all the circumstances, the Tribunal did not find itself able to conclude that the disclosure would be likely (as distinct from possible) to have a negative impact. Given the passage of time since the valuation and the capacity for variable factors to reduce its reliability, the Tribunal had not been satisfied by the Council’s argument that there was an appreciable risk to the receipt of best value.  Moreover, the Tribunal noted that certain of the information contained within the valuation document was already in the public domain.  In all the circumstances, the Tribunal found that the public interest in maintaining the exception did not outweigh the public interest in disclosure.

James Goudie QC