Confidential financial information and public disclosure

London Borough of Southwark v Information Commissioner, Lend Lease UK Ltd & Adrian Glasspool (First Tier Tribunal General Regulatory Chamber, 9 May 2014; EA/2013/0162) is an important case for local authorities to consider in relation to confidential information
and public disclosure.

The Heygate estate in Elephant and Castle is the subject of major redevelopment. The scheme is controversial, not least among former residents who have had to move out. Southwark Council sees the scheme as essential and bringing with it much-needed improvement to the local area.

Glasspool, a resident who had to move from his home in the estate, asked Southwark to see the developer’s financial viability appraisal, which had persuaded the council to agree to an affordable housing provision of 25 per cent, rather than its usual requirement of 35 per cent.

Southwark provided only
a redacted version of the developer’s figures. So, Glasspool went to the Information Commissioner (ICO). The ICO required Southwark to provide the full unredacted financial information. Southwark subsequently appealed to the First-tier Tribunal (General Regulatory Chamber).

The tribunal heard some of the evidence in the appeal in ‘closed session’, in the absence of the public and Glasspool. The evidence withheld from the public included a report by the district valuer on the developer’s viability appraisal.

The report “discussed the disputed information in such detail that disclosure of it to Mr Glasspool would also defeat the object of the proceedings”. After the closed sessions, those excluded were given “the gist”
of what had transpired in those sessions. This is a fairly common feature of closed session proceedings in a number
of areas of the law.

That such information,
relating to decisions of public bodies, might be withheld from the public, may cause dismay among campaigners for open public governance.

The tribunal sought to balance the public interest in disclosure with the public interest in the development proceeding, and the preservation of Lend Lease’s commercial interests.

On the side of disclosure, it noted that “the legislature must be taken to intend that it is not always in the public interest for a public authority to choose to keep information confidential.

“...There is no ‘breach of trust’ when a public authority fulfils its statutory obligation under FOIA or EIR. Private sector partners and their consultants are aware of the legal limits. They recognise in contracts that in an individual case, depending on the circumstances, the public authority may have a duty
to disclose”.

On the other hand, “the operating model and the projections on commercial negotiations” were too sensitive, and disclosure would be too prejudicial to the developer,
to require disclosure.

The tribunal found that information of that category should remain confidential,
but the rest of the redacted information should be disclosed because of the importance,
in this particular project, of
local people having access
to information to allow
them to participate in
the planning process.

Finally, the tribunal found
that Lend Lease and Southwark should try to agree on what material fell into each category, and then send that to the ICO, for its agreement, before disclosure to Glasspool. If the three parties could not agree, the tribunal would decide precisely
what would be disclosed.

SJ

Jeremy Pike is a barrister practising from Francis Taylor Building