Property development — Public authority — Medical practice — Request for information — Complainant alleging non-disclosure of relevant information — Authority claiming disclosure prejudicial to commercial interests — Whether public interest in maintaining exemption — Complaint upheld in part
The complainant had requested information from a public authority (a medical practice) under section 1 of the Freedom of Information Act 2000 in respect of its proposed expansion or relocation. The planned relocation was to be achieved by way of a private finance initiative. The developer was to fund the building of new premises that were then to be leased to the authority. The local primary care trust (PCT) would provide the annual rent and the lease agreement would be made between the authority and the developer.
The public authority eventually disclosed copies of its e-mails with the developer, some minutes of meetings, copies of miscellaneous letters, a report on alternative sites and drawings and plans. It also offered to meet the complainant.
The complainant considered that he had not received all relevant information and, in particular, alleged that the public authority had not complied with section 1(1) of the Act by failing to provide: (i) minutes of informal meetings with the developer; (ii) information within the heads of terms between it and the developer that was not exempt under section 43(2); and (iii) information relating to requests for financial assistance from the PCT, held on its behalf by another person (the developer) within section 3(2)(b).
Under section 50(1), except where a complainant had failed to exhaust a local complaints procedure, or where the complaint was frivolous or vexatious, subject to undue delay or had been withdrawn, the information commissioner was under a duty to consider whether the request for information had been dealt with in accordance with Part 1 of the Act and to issue a decision notice to the complainant and the public authority.
Held: The complaint was upheld in part.
(1) There was no evidence of any minutes of meetings with the developer at the time the request for information was made; the public authority did not take formal minutes because it did not intend to create a permanent, detailed record of such meetings.
(2) When the request for information was made, the public authority still had the opportunity to withdraw from the project and to negotiate with a different developer. Thus, information in respect of the annual rent, rent reviews, repairing terms and costs incurred to date was commercially sensitive because it might still be of value to competitors in any revised scheme. Accordingly, the exemption in section 43(2) was applicable to that information since its disclosure would be prejudicial to commercial interests.
Moreover, the public interest in maintaining the exemption outweighed the public interest in disclosing information to demonstrate the diligence and integrity of the procurement process, since concerns about the disclosure of commercially sensitive information before negotiations had been concluded could hinder their successful completion and this would work against the public interest. However, in respect of other, non-exempt information in the heads of terms, the public authority had failed to comply with section 1(1) of the Act and was required to disclose that information within 30 days of the date of the decision notice.
(3) The information held by the developer regarding the level of financial assistance to be provided by the PCT was held for its own purposes and so was not held by a public authority under section 3(2)(b). Therefore, the question of disclosure did not arise.
Eileen O’Grady, barrister