What are the 21 paragraphs of reasons why Wirral Council opposes release of the Hoylake Golf Resort contract?
I’ll declare at the start an interest as the person who made the information request the below is about.
This is an update to two earlier blog posts, the first headlined ICO require Wirral Council to release 94 page draft agreement with Nicklaus Joint Venture Group Limited about Hoylake Golf Resort and the second being Wirral Council asks judiciary to intervene to keep 94 page report on Hoylake Golf Resort secret!
Below are Wirral Council’s grounds of appeal. On the first page it lists Wirral Metropolitan Borough Council as the Claimant, when they are in fact the Appellant.
The case number is EA/2017/0191 in the First-tier Tribunal (Information Rights) which is part of the General Regulatory Chamber. I’ve linked certain words and phrases below such as to legislation or the decision notice. I will point out that there are parts of it I do not agree with.
IN THE FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
WIRRAL METROPOLITAN BOROUGH COUNCIL
THE INFORMATION COMMISSIONER
GROUNDS OF APPEAL
- The Appellant (“the Council”) appeals against decision notice FER0672223 issued by the Respondent (“the Commissioner”) on 7 August 2017.
- The decision notice concerned the Council’s response to a request for information made pursuant to the Environmental Information Regulations 2004 (“EIR”). The information requested related to the ‘Hoylake Golf Course Project’, a joint venture between the Council and a commercial third-party for the development of a golf resort on land part-owned by the Council.
- In response to the request the Council refused to disclose the requested information, relying on regulations 12(5)(b) (course of justice) and regulations 12(5)(e) (confidentiality of commercial information) EIR. The Commissioner upheld the Council’s reliance on regulation 12(5)(b), but found that the Council was not entitled to rely on regulation 12(5)(e).
- Accordingly, the Commissioner directed the Council to disclose “pages 43-1461 of the Private Document Pack” which is the Development Agreement between the Council and Nicklaus Joint Venture Group Limited (“Nicklaus”). It is the Development Agreement with which this appeal is concerned.
- The Council appeals against the Commissioner’s decision pursuant to section 57 Freedom of Information Act 2000. Whilst it is willing to disclose parts of the Development Agreement, it also seeks to withhold parts of it in reliance on regulations 12(5)(e) and 13 EIR. The parts it wishes to withhold are referred to below as “the disputed information”. The disputed information will be precisely identified in an annotated version of the Development Agreement which will be served shortly. The Council’s full reasoning for seeking to withhold the disputed information will be set out in witness evidence in due course. These Grounds of Appeal set out in broad terms the basis of the Council’s appeal.
- The Council has undertaken work on the potential development of a golf resort in Hoylake over a number of years. The Council’s primary aim in doing so has been the economic development of its area.
- In 2014 the Council ran a procurement process using the competitive dialogue procedure to appoint a developer for the proposed development. The developer appointed pursuant to this process was Nicklaus.
- The signing of the Development Agreement with Nicklaus had been authorised by a decision of the Council’s Cabinet on 7 November 2016. The decision had been called in by certain Members and a special meeting of the Council’s Business Overview and Scrutiny Committee was held on 7 December 2016, to consider this “call-in”. Members were provided with a ‘Private Document Pack’ which contained the Development Agreement and other documents relevant to it. The Committee upheld the Cabinet decision to take the next steps in respect of the proposed development including the authorisation of the Development Agreement which was executed on 8 December 2016.
1The reference in the decision notice to p.146 is an error. It should be p.136.
- On 12 December 2016 a Mr John Brace wrote to the Council seeking disclosure of pages 15-136 of the Private Document Pack. Mr Brace is a local blogger with a particular interest in the Council’s functions and decision-making.
- On 10 January 2017 the Council responded to Mr Brace’s request and refused to disclose the information sought. That refusal was upheld in an internal review communicated on 3 March 2017.
The decision notice
- In the decision notice the Commissioner made the following findings, so far as here relevant:
- The Council was entitled to rely on regulation 12(5)(b) in respect of pages 15-42 of the Private Document Pack because those pages were protected by legal professional privilege and the public interest weighed in favour of maintaining the course of justice exception;
- The Development Agreement was commercial or industrial in nature as it relates to the sale and leasing of land by the Council to Nicklaus;
- The Development Agreement is subject to confidentiality provided by law as there are both implied and express obligations of confidentiality in relation to it;
- Disclosure of the Development Agreement would not, on the balance of probabilities, cause harm to the legitimate economic interests of the Council or Nicklaus;
- It was not necessary in the circumstances to go on to consider the balance of the public interest.
The grounds of appeal
- The Council appeals against the decision notice on the following grounds:
- The Commissioner erred in concluding that regulation 12(5)(e) was not engaged in respect of the disputed information;
- The Commissioner erred in not finding that the public interest balance weighed in favour of maintaining the exception.
- The Council will also say that some of the disputed information is exempt from disclosure on the basis of regulations 12(3) and 13 EIR.
Regulation 12(5)(e) EIR
- Regulation 12(5)(e) provides:
…a public authority may refuse to disclose information to the extent that its disclosure would adversely affect-…
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
- Regulation 12(5)(e) is engaged for the entirety of the disputed information:
- In her decision notice the Commissioner correctly concluded that the disputed information is commercial in nature;
- The Commissioner also correctly concluded that the disputed information is subject to express and implied obligations of confidentiality;
- Those obligations of confidentiality exist to protect the legitimate economic interests of both the Council and Nicklaus;
- Disclosure would adversely affect that confidentiality and to that extent regulation 12(5)(e) is engaged;
- Further, disclosure would result in significant harm to the legitimate economic interests of both the Council and Nicklaus. As to harm to the Council’s economic interests:
- Disclosure of the disputed information would cause a deterioration in the commercial relationship between the Council and Nicklaus and would cause the latter to be less willing to share confidential information with the Council voluntarily in the course of implementation of the Development Agreement;
- Disclosure of the disputed information would make developers and other commercial undertakings less likely to want to do business with the Council in the future. Nothwithstanding the existence of the EIR, commercial entities are entitled to assume that their confidential information will be protected by public authorities with whom they do business. If they cannot be assured of that when doing business with the Council, they will choose not to do so;
- A reduction in the number of commercial undertakings willing to do business with the Council will significantly affect its ability to secure best value in future procurement processes;
- Disclosure of the disputed information would also prejudice the Council’s ability to secure best value in future procurement processes as other commercial undertakings would be able to learn what the Council had been willing to agree to in this commercial negotiation. Bidders in future procurement exercises would be likely to adjust their bids and negotiating positions accordingly.
- As to harm to Nicklaus’s economic interests:
- Disclosure of the disputed information would give Nicklaus’s competitors unfair insight into its commercial strategy and priorities and thereby create an unfair competitive advantage. Competitors would use the information gained to their advantage and to Nicklaus’s disadvantage when bidding for future projects;
Regulation 13 EIR
- Regulation 13 provides, so far as here relevant:
(1) To the extent that the information requested includes personal data of which the applicant is not the data subject and as respects which either the first or second condition below is satisfied, a public authority shall not disclose the personal data.(2) The first condition is-(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under these Regulations would contravene-(i) any of the data protection principles; or(ii) section 10 of that Act (right to prevent processing likely to cause damage or distress) and in all the circumstances of the case, the public interest in not disclosing the information outweighs the public interest in disclosing it;
- Certain parts of the disputed information (which will be identified in the annotated version of the Development Agreement) constitute the personal data of third parties which it would be unfair, and therefore contrary to the first data protection principle to disclose. It is therefore exempt from disclosure on the basis of regulation 12(3) and 13 EIR.
The public interest balance
- The public interest test applies to all of the disputed information in respect of which regulation 12(5)(e) is engaged.
- The disputed information (or part thereof) engages the rights of Nicklaus under Article 1, Protocol 1 of the European Convention of Human Rights (“ECHR”): see Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council  EWCA Civ 1214  PTSR 185. To that extent, the presumption in favour of disclosure in regulation 12(2) must be disapplied so as to give effect to that fundamental right. Further, the public interest balance must be conducted so as to achieve a proportionate outcome, in accordance with the principles of justification for interference with fundamental rights.
- In the present case the public interest favours maintaining the exception in regulation 12(5)(e):
- There is a strong public interest in maintaining the principle of commercial confidentiality in public/private contracts;
- There is a strong public interest in ensuring that public authorities such as the Council are able to achieve the best outcomes from their procurement exercises and thereby protect public funds;
- There is a strong public interest in maintaining the existence of fair competition between operators in particular commercial markets;
- There is a strong public interest in ensuring that the Council’s commercial relationship with Nicklaus is not negatively affected such that delivery of the Hoylake project is disrupted;
- By contrast, the public interest in the disclosure of the disputed information is much weaker. There is already a very substantial amount of information about the Hoylake golf resort project in the public domain and the disputed information would not serve the interests of transparency in any meaningful sense. The incremental benefit of disclosure is therefore very limited;
- The disputed information relates to the detailed commercial arrangements between the parties. It will not meaningfully assist in public debates about the use of green-belt land or environmental decision making;
- In all the circumstances, therefore, the public interest weighs in favour of maintaining the exception.
- For the reasons given above, together with those to be given at the hearing of this appeal, the Tribunal is respectfully invited to allow the Council’s appeal and to issue a substituted decision notice which directs that the disputed information is exempt from disclosure.
31 August 2017
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