Upper Tribunal Sets Aside Decision on Disclosure of Commercial Negotiation Tactics

[NAME] v [NAME] [2020] UKUT 54 (AAC)

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THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL CASE NO: GIA/1236/2019 [2020] UKUT 54 (AAC) [NAME] V THE [NAME]

DECISION OF UPPER TRIBUNAL JUDGE JACOBS

On appeal from the First-tier Tribunal (General Regulatory Chamber) Reference: EA/2018/0195 Decision date: 18 February 2019

As the decision of the First-tier Tribunal involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

REASONS FOR

DECISION 1. This appeal concerns land that was acquired by [NAME] for a proposed development. As is often the case when land is sold for development, there was provision for the developer to make provision that is beneficial to the community. By 2015, [NAME] had decided not to proceed and sold the land on.

2. Before then, [NAME] had become interested in the negotiations between the local authority and [NAME], and in particular about advice that the authority received from its agent. In 2017, he made a request under the Freedom of [NAME] Act 2000It was dealt with under the [NAME] 2004 (SI No 3391). Following a complaint to the [NAME], all the [NAME] that [NAME] had asked for was disclosed with the exception of one passage, which the Commissioner decided was an exception under regulation 12(5)(e) on the ground that ‘disclosure would adversely affect … (e) the confidentiality of commercial or industrial [NAME] where such confidentiality is provided by law to protect a legitimate economic

UPPER TRIBUNAL CASE NO: GIA/1236/2019 [2020] UKUT 54 (AAC) [NAME] V THE [NAME]

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interest’.

Accordingly, regulation 12(1)(b) provided that the [NAME] had to be disclosed unless ‘in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the [NAME].’ This had to be applied in accordance with regulation 12(2), which provides: ‘A public authority shall apply a presumption in favour of disclosure.’ 3. On appeal, the First-tier Tribunal confirmed the Commissioner’s decision, save for one sentence that it ordered to be disclosed. In short, the [NAME] that was withheld related to the tactics that the local authority should apply in negotiations with [NAME]. The tribunal accepted that there was a ‘significant public interest in understanding what had happened’ on the basis of the argument put by [NAME] at the hearing. This is how the tribunal set out his argument: The appellant provided further [NAME] at the hearing about the public interest in disclosure. He explained that the community had been due to be provided with an adult education centre as part of the sale agreement. Matters took so long that an adult education centre was set up elsewhere in 2013. The community also had an urgent need for a health and social care centre, so this was the alternative space that [NAME] agreed to provide under the sale agreement. However, the Council’s negotiations failed and [NAME] pulled out. As a result, the health and social care centre has been moved into the library – which is an unsuitable space for this service and has halved the size of the library. Ongoing pain has been caused to the community by these decisions. The land has now been sold on to the builders [NAME] (Thames Gateway). The appellant’s position is that whatever negotiation strategy was used by the Council, it has clearly failed and the public should know what this was in order to call the Council to account for failing to further the public good. However, the tribunal decided that this was outweighed by the public interest in maintaining the exception. The [NAME] related to ‘negotiation tactics on a specific topic’ and: … there is a clear public interest in allowing the Council to approach negotiations on a level playing field. Disclosure of specific negotiation tactics would undermine the Council’s ability to negotiate similar deals with land owners on a commercial basis, as those land owners would be aware in advance of the Council’s likely tactics. This would prevent the Council from obtaining the best value in its land deals, with a consequential effect on the public purse. It is clearly in the public good for the Council to be able to conduct effective commercial negotiations.

4. I consider that the tribunal’s reasoning on the case for maintaining the exception is flawed. It takes no account of the content of the [NAME]. I have read it and it seems to me to contain nothing unique or unusual. It is the sort of advice that a local authority would generally be given in the circumstances. As

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anyone involved in selling or acquiring land for large scale development would surely have their own advisers, it is also the sort of advice that would be anticipated by the other side. If that is right, making it public would not hamper a local authority in the ways identified by the tribunal.

5. I am not saying that my reading of the [NAME] would necessarily result in the balance shifting to favour disclosure. That is why I have remitted the case for rehearing, when the knowledge and experience of the specialist members will assist the tribunal to decide how that balance should be struck. My concern is that the tribunal did not take the factors I have mentioned into account, at least so far as its written reasons show.

6. It is possible that, if the [NAME] would be well known to anyone advising on development issues, disclosure would not do much to further the public interest as set out by [NAME]. The test for the balance of public interests is a comparative one, so that the weaker the case for one side, the less the public interest on the other side needed to outweigh it. As I said in FCO v Information Commissioner and Plowden [2013] UKUT 275 (AAC):

15. I accept Mr [NAME]’s argument that the First-tier Tribunal made an error of law in its approach to the public interest test. He accepted that the tribunal had undertaken the assessment of the public interest in maintaining the exemptions correctly by asking what the detrimental effects of disclosure might be. But he argued that it failed to do the obverse and ask what the benefits of disclosure might be. I accept his argument that the [NAME] that the tribunal ordered to be disclosed was not particularly informative. Given that, the tribunal needed to explain what the public interest was in disclosure that could be set up against the interest in maintaining the exemptions, which it described as ‘very high indeed’. The tribunal did make the point about the lack of value in the [NAME] if disclosed, but it did not show how the presumption in favour of disclosure might shift the balance in [NAME]’s favour.

7. When I gave permission to appeal, I was also concerned that the tribunal appeared to be saying that it could not take account of material that was not before the Commissioner and that the case involved the exercise of a discretion. Having read the submission from the Commissioner, which does not support the appeal, I am satisfied that there was no discretion involved in this case. And having re-read the tribunal’s written reasons, I am also satisfied that, whatever the tribunal may have meant, it did not restrict [NAME] in the case that he put on the public interest. I need say no more on this point.

Signed on original on 18 February 2020 Edward Jacobs Upper Tribunal Judge