CONFIDENTIAL COMMERCIAL INFORMATION AND HUMAN RIGHTS – NEW TRIBUNAL DECISION

December 21st, 2010 by Anya Proops QC

A question which is frequently posed under both FOIA and the EIR is whether and to what extent confidential, commercial information can lawfully be withheld by a public authority. The recent decision of the First Tier Tribunal in the case of Staffordshire County Council v IC & Silbelco [2010] UKFTT 573 (GRC), (EA/2010/0015) embodies a number of important principles which should be considered whenever this question is being posed.

In Staffordshire, a request had been made for disclosure of particular commercial information consisting of the sales figures and reserve figures which a particular quarry operator (Sibelco) had generated in respect of the minerals which it quarried. The information had been provided by Sibelco to the local authority under a voluntary scheme. The scheme had been set up with a view to assisting the authority in discharging its statutory obligations as a mineral planning authority. Sibelco had provided the information to the authority on the express basis that it was to be treated in strictest confidence. Following a request for disclosure of the information, the authority refused to disclose the information on the basis that it was exempt under s. 41 FOIA (the confidential information exemption). During the complaints process before the Commissioner, the authority accepted that, in view of the environmental nature of the information, the applicable access regime was the EIR, rather than FOIA. However, it went on to argue that the information was still exempt under r. 12(5)(e) (commercial/confidential information exception) or 12(5)(f) (exception in respect of information provided in confidence) EIR. The Commissioner accepted that both exceptions were engaged in respect of the disputed information. However, he concluded that, on an application of the public interest test, the public interest weighed in favour of the information being disclosed. The authority appealed the Commissioner’s decision to the First Tier Tribunal. The Tribunal held that the Commissioner had erred as the public interest balance provided for under r. 12(1)(b) EIR  weighed in favour of the information being withheld.

Importantly, in analysing the application of the public interest test the Tribunal took into account the recent Court of Appeal judgment in Veolia v Nottinghamshire CC [2010] EWCA 1214. In that case, which was concerned with the access to confidential, commercial information under s. 15 of the  Audit Commission Act 1998, Rix LJ concluded that: (a) he could see no reason why ‘valuable commercial confidential information’ could not amount to a ‘possession’ for the purposes of Article 1 of Protocol 1 of the European Convention of Human Rights (A1/P1) (b) in the circumstances, unrestricted disclosure of such information would amount to an interference with the A1/P1 right to possession enjoyed by the person whose information it was; and (c) such interference would have to be justified if it were not to be unlawful under the ECHR (see §§120-122). In Staffordshire, the Tribunal relied upon Rix LJ’s reasoning to arrive at the following conclusions on the application of the EIR (and FOIA) to confidential, commercial information (§151):

  • The disclosure of confidential information by a public body such as the Appellant engages the ECHR rights of the holder of the confidence;

 

  • A statutory right for the public to have access to any information must have an exception read into it to exempt the disclosure of confidential information in order to give effect to those ECHR rights;

 

  • The presumption in favour of disclosure of all environmental information held by public bodies in Regulation 12(2) EIR 2004 must now be read subject to an exception in the case of any such information which is held by the public body subject to a legal duty of confidentiality;

 

  • Where environmental information is held by a public body which is subject to a legal duty of confidentiality there is recognised to be a “strong public interest” in the maintenance of valuable commercial confidential information;

 

  • Arguments can be advanced on the individual circumstances of the case to seek to justify overriding the duty of confidence for particular pieces of information.’

The Tribunal was of the view that the facts of the case were such that there was no justification for overriding the duty of confidence owed to Sibelco in respect of the disputed information.

In light of the Tribunal’s analysis of the implications of Veolia, it is to be expected that human rights arguments will now commonly feature in any appeal involving an application of the EIR or FOIA to confidential, commercial information.