Tribunal allows FOI appeal in part over council investments in solar farm

The Bureau for Investigative Journalism (BIJ) has won an interim ruling in a First Tier Tribunal case to require Thurrock Council to disclose information about its investments in solar farms, it has been reported.

According to the BIJ, Thurrock has borrowed almost £1bn from other public bodies to invest in green energy schemes, mainly solar ones.

It last year asked Thurrock to disclose details but the council refused parts of this citing “commercial sensitivity”, which was upheld by the Information Commissioner’s Office (ICO).

But the tribunal said in its interim decision there was ”significant public interest in transparency”.

Labour MP Meg Hillier, chair of the Public Accounts Committee, said: “I applaud the determination of the Bureau for pursuing this and winning a victory for taxpayers.”

Ms Hillier added: “With so many risky investment plans coming home to roost, this ruling is timely in enabling local taxpayers to see what is being spent, and how, in their name.”

The BIJ said Thurrock took out loans from some 150 local authorities and then put more than £800m into renewable energy ventures in an attempt to become financially self-sufficient.

It said these loans and investments were overseen by finance director Sean Clark, who was also responsible for dealing with accounts-related requests under the Freedom of Information Act and who rejected the bureau’s request to reveal which councils Thurrock had borrowed from and what the money had financed.

In its appeal to the tribunal, the Bureau argued that disclosing the information was overwhelmingly in the public interest due to the sums of money involved, the fragility of local government finances and serious concerns about the investments uncovered through our investigations.

The tribunal found there was “significant public interest in transparency in relation to the actions of councils borrowing for the purposes of making a profit” and said the suggestion Thurrock had breached statutory guidelines by doing so was “plausible”.

An ICO statement supplied by the Bureau said: “The commissioner has considered the tribunal’s interim decision and noted the reasons for it, and does not propose to seek permission to appeal the interim decision.”

Thurrock said the tribunal had stated that a separate order will be issued requiring the council to either disclose the information or provide any further submissions, after which it would decide whether an exemption from disclosure under s36 of the Freedom of Information Act applies. This deals with prejudice to the conduct of public affairs.

A Thurrock statement said: “A First Tier Tribunal has made a partial interim decision to overturn the determination of the Information Commissioner’s Office which supported the council in not sharing specific commercial information about its historic investments under the investment strategy under section 43(2) of the Freedom of Information Act (FOIA). Thurrock Council is disappointed in that partial decision.”

It welcomed the FTT’s decision to rule on s36 only after hearing fuller argument and said: “The as yet untested exemption under section 36(2) of the FOIA maintains that disclosure of this specific information would create prejudice in the council being able to conduct public affairs.”

The council said the delegated borrowing was approved by councillors “on numerous occasions through budget processes” and the council had recently unanimously agreed its investment approach.

“Group leaders have been fully briefed on what it is doing and investing in,” the statement said.

“This has raised over £70m for Thurrock services over the last two years and £13.5m for other councils and emergency services pension funds in 2019-20, while also massively investing in green renewable energy and technology.”

Mark Smulian