Council wins appeal to Tribunal over request for information on golf club sale
Breckland District Council was entitled to treat some information relating to the sale of a golf course as confidential, the First-Tier Tribunal (General Regulatory Chamber) Information Rights has found.
The council brought the case against the Information Commissioner and Timothy Birt, a Green party councillor in the area.
In Breckland District Council v The Information Commissioner & Anor [2023] UKFTT 103 (GRC) Brian Kennedy KC, who heard the case with Marion Saunders and Susan Wolf, noted it concerned section 57 of the Freedom of Information Act 2000 and a request for information from Cllr Birt about the sale by the council of Barnham Broom Golf and Country Club.
Breckland withheld some of this under the section 43(2) exemption for commercial interest but the Commissioner found Breckland wrongly handled the request.
The Commissioner said the withheld information should have been considered under the Environmental information Regulations (EIR) 2004 and asked Breckland to reconsider Cllr Birt’s request.
Breckland disclosed further information but still with redactions for commercial confidentiality under Regulation 12(5)(e) of the EIR.
The Commissioner further objected to Breckland’s handling and said it failed to demonstrate that the exception in Regulation 12(5)(e) EIR was engaged and ordered disclosure within 35 days.
This was because to engage Regulation 12(5)(e) Breckland had to meet four conditions: is the information commercial or industrial in nature; is the information subject to confidentiality provided by law; is the confidentiality provided to protect a legitimate economic interest; would the confidentiality be adversely affected by disclosure?
Breckland had met the first condition but not the other three, the Commissioner decided.
The council appealed on the grounds that the Commissioner failed to make a finding on whether the information was commercial in nature and erred in stating it had not shown that disclosure would adversely affect confidentiality provided by law to protect a legitimate economic interest.
Breckland also argued that it had provided evidence that the information was subject to confidentiality provided by law and that the Commissioner should have determined the public interest was in favour of withholding the information.
At the appeal, the Commissioner said the onus was on Breckland to demonstrate that disclosure would adversely affect confidentiality provided by law to protect a legitimate economic interest.
The council’s Assistant Director - Property and Infrastructure, provided a witness statement that said the council held a property portfolio to raise revenue which helped to meet costs and keep council tax rates lower than otherwise.
The Assistant Director told the tribunal: “If the council was to dispose of the property and was unable to hold commercially confidential discussions with any potential purchaser and information was to be made publicly available, then the council's negotiating position would be eroded in that the purchaser would be able to understand for instance any approved agreed threshold for a sale price or how a sale price is below or above the council's valuation for the property.”
After hearing further from the Assistant Director in closed session, the FTT concluded: “The tribunal have been persuaded without reservation that the exception at regulation 12(5)(e) EIR is engaged in relation to the redacted material that has been re redacted…and the public interest in withholding the relevant information outweighs the public interest in disclosure.”
Mark Smulian
