Tag: commercial prejudice

Board minutes of a public/private joint venture confidential and commercially sensitive

Posted on | by Robin Hopkins

Joint ventures between the public and private sectors are increasingly common. They are often a focus for vigorous political debate over issues such as the costs involved, the savings to the public purse, the profit to the private sector partner, and allegations of conflicts of interest. While those are political arguments on which Tribunals take no view, they do point to the significant public interests that are engaged when considering access to information. So said the Tribunal in David Orr v IC and Avon and Somerset Police Authority (EA/2012/0077), a recent decision notable for grappling with access to information about such a public/private joint venture.

South West One Limited (“SW1”) is a company formed in 2007 as a joint venture by three West country public authorities (together owning 25% of the company) and IBM (75%) to create for their own use and promote and sell to other authorities IT support systems of various kinds. Given its membership of the board of SW1, the second respondent police authority held minutes of its board meetings. The requester asked for that information. The police authority refused, relying on ss. 41 (actionable breach of confidence) and 43(2) (prejudice to commercial interests) of FOIA. An important feature here was that the joint venture agreement contained confidentiality clauses, including one providing that “each of the parties… shall hold in confidence… any financial or other information in respect of the company or the business”. The Commissioner upheld the refusal, finding no evidence that the agreements were being used to circumvent FOIA improperly.

The Tribunal agreed. It rejected the requester’s argument that SW1 should be treated as a public authority for FOIA and EIR purposes. It also upheld reliance on s. 41. It found that redactions would not suffice to remove confidentiality:

“… removal of the name of the targeted purchaser might not conceal its identity from well – informed readers. More fundamentally, board minutes are, by their nature, confidential information. They record disagreements and minority opinions. They should frankly describe the inner workings of the company, whenever significant issues are discussed. It is important in the shareholders` interests, that board minutes fully reflect what has been transacted.”

As to the prospects of success for a public interest defence to an action for breach of confidence, the Tribunal noted the police authority’s sympathy with the requester’s position: “any loss of transparency or “democratic deficit” arising from the creation of SW1 was an inevitable consequence of joint ventures involving public and private sector entities working together through a limited company.”

The Tribunal approached the public interest defence as follows (paragraph 32):

“We have regard, on the one hand, to what is already in the public domain and, on the other, to the undoubted importance of transparency in the operation of joint ventures, in so far as that is consistent with the proper commercial interests of the company thereby created, here SW1. If a joint venture company has been formed for the specific purpose of frustrating the duties of disclosure enacted in FOIA; if public funds are being needlessly squandered in a badly – managed business; if serious conflicts of interest are or may be distorting the company`s operations, then there may be a strong case for disclosing information which reveals such facts.”

None of those concerns arose here, and an action for breach of confidence would not be defeated.

Similar considerations meant that reliance on s. 43(2) would also succeed here. On this issue, the Tribunal observed (paragraph 37) that even where a joint ventures is between public authorities alone (i.e. without the involvement of a private sector partner), the case for reliance on s. 43(2) may be equally strong.

For further analysis of this case, see the Local Government Lawyer.

Anya Proops represented the police authority.

Robin Hopkins

Commercial prejudice: the importance of precise and limited redactions

Posted on | by Robin Hopkins

In the recent decision in UK Coal Mining v IC, Nottinghamshire County Council & Veolia [2012] UKUT 212 AAC, the Upper Tribunal has dismissed an appeal concerned with section 43(2) of FOIA (commercial prejudice): the First-Tier Tribunal (decision EA/2010/0142, on which see our post here) had been entitled to find that only very limited redactions could be made to provisions from a PFI contract for a waste incinerator. Upper Tribunal Judge Wikeley’s decision, while largely fact-specific, illustrates two significant points.

First, appeals against FTT decisions are liable to fail where they are simply attempts to re-run questions of fact and judgment.

Secondly, those seeking to rely on section 43(2) FOIA should be as precise as possible. Sometimes, for example, a clause in a contract might appear commercially sensitive at first glance, but upon closer scrutiny all that really warrants withholding might be the numbers.

The background to the decision is briefly as follows. UK Coal entered into a complex PFI agreement with the Council for an option to lease a former colliery site the site, with Veolia then sub-leasing the site from the Council to operate an incinerator. Upon a request for the contracts, the Commissioner found that regulation 12(5)(e) of the EIR (confidentiality of commercial or industrial information) was engaged, but that the public interest favoured disclosure. Upon what was effectively UK Coal’s appeal, the FTT found that the matter should have dealt with under FOIA rather than the EIR. Section 43(2) was engaged, but the public interest favoured disclosure of at some of the disputed information. Eventually, the Tribunal largely endorsed the Commissioner’s (very limited) redactions, rejecting the much more extensive redactions proposed by UK Coal. UK Coal’s appeal to the Upper Tribunal failed.

As regards challenges to the FTT’s decision, Upper Tribunal Judge Wikeley said that it was important that the FTT’s statement of reasons is read as a whole, rather than highlighting particular phrases and taking them out of their wider context. The FTT had allowed for the redaction of what it called “core financial information”, but this was simply a convenient shorthand not amenable to close textual analysis or to legal challenge per se.

Notably, he said that this of the FTT’s assessment:

“This was a quintessential issue of fact and degree for the tribunal at first instance to determine… The bottom line is that UK Coal is essentially seeking to re-argue questions of fact and judgement which have been litigated and adjudicated upon on their merits by the FTT.“

Judge Wikeley also warned that the caution against relying too heavily on other FTT decisions (see the Upper Tribunal’s decision in LB Camden v IC and Voyias GIA/2986/2011) applies with even greater force to attempts to rely on other decision notices by the ICO (as UK Coal sought to do here).

Turning to the section 43(2) redactions urged by UK Coal, the Upper Tribunal considered these to be “far too wide-ranging” and its arguments unsustainable. Some of the terms it sought to withhold were commonplace to commercial agreements. The FTT had approached its redaction analysis with care and precision, and correctly struck a balance between protecting UK Coal’s proper commercial interests under section 43 while ensuring that other information is disclosed. In some cases, the FTT allowed only for the redaction of figures rather than terms as a whole. This nonetheless ensured that a member of the public would have “no idea as to either the commercial methodology or the key financial and other numerical variables used”.

The Upper Tribunal’s decision cites specific examples of the scope of redactions to commercial terms which the FTT applied and which the Upper Tribunal found to be entirely understandable. The examples merit close attention by those seeking to withhold information in similar cases.

Robin Hopkins