DISCLOSING CONSULTANTS’ REPORTS UNDER THE EIR

October 21st, 2009 by Anya Proops QC

Yesterday, the Information Tribunal promulgated an important decision on the application of certain exceptions in the Environmental Information Regulations 2004 (EIR), South Gloucestershire Council v Information Commissioner & Bovis (EA/2009/32). The case concerned an application made by a developer (Bovis) for disclosure of information contained in a number of consultants’ appraisals. The appraisals had been commissioned by the council in respect of a proposed section 106 planning agreement. The agreement in turn related to a major development which Bovis was proposing to undertake in the council’s area. The appraisals had been commissioned in essence in order to assist the council in its negotiations with Bovis in respect of the section 106 agreement. The council had refused disclosure of some of the information in the appraisals, which largely consisted of financial information, on the basis that that information fell within the exceptions provided for under r. 12(4)(e) EIR (the internal communications exception) and r. 12(5)(e) EIR (the confidential/commercial information exception). The Commissioner held that neither of these exceptions was engaged.

 

On appeal by the council, the Tribunal held that the circumstances of the case were such that the council had not been entitled to treat the appraisals as an ‘internal communication’ for the purposes of r. 12(4)(e) (cf. the Tribunal’s decision in Secretary of State for Transport v Information Commissioner (EA/2008/0052): draft report on transport policy prepared by independent third party was an ‘internal communication’, particularly in view of the extent to which the third party had been ‘embedded’ in the public authority). However, the Tribunal went on to allow the council’s appeal on the basis that the information in the appraisals did constitute confidential, commercial information falling within the ambit of r. 12(5)(e). The Tribunal also held that the public interest balance weighed in favour maintaining the exception and, accordingly, that the council had been lawfully entitled to withhold the requested information.

 

In reaching the conclusion that r. 12(5)(e) was engaged in respect of the information, the Tribunal rejected arguments advanced by the Commissioner that r. 12(5)(e) would only be engaged in respect of confidential information where the duty of confidence was owed by the public authority to a third party. It held that r. 12(5)(e) applied equally to the authority’s own confidential information. Notably, in finding that the public interest balance weighed in favour of the information being withheld, the Tribunal relied in particular on the volume of information which the council had already disclosed relating to the section 106 process and the planning process more generally.