Freedom of information v commercial confidentiality – tribunal rules

What happens when freedom of information and commercial confidentiality conflict? That crucial question was addressed in a case in which a local authority was asked to disclose full financial details of the business case which underpinned its wind energy investment programme.

A member of the public had requested disclosure of a complete financial statement of the council’s policy in relation to wind turbines. His request was, however, refused by the Information Commissioner (IC) on the basis that the council had a legitimate economic interest in keeping the information secret.

The council’s cost estimates and financial forecasts were expected to form the basis of tendering exercises in respect of contracts to be awarded over a 25-year period. The IC accepted that public disclosure would enable tenderers to tailor their bids in such a way as to maximise their profits at the council’s expense.

In challenging that decision before the First-tier Tribunal (FTT), the man pointed to the legal presumption in favour of disclosure and the need for transparency so that the public could participate in the debate in respect of the council’s wind energy policy, armed with details of the anticipated costs and benefits.

The FTT accepted that the council’s concerns were entirely legitimate. However, in allowing the man’s appeal in part, it directed disclosure of the introductory pages of a council report, which included a costs commentary and a description of the broad assumptions used in formulating the business plan. That was unlikely to hand an unfair competitive advantage to contract tenderers.