Clive David Carter v Information Commissioner

Parties to the Appeal

FOIA

"For this exemption to be engaged, the envisaged prejudice must be “real, actual or of substance”, and there must be “more than a hypothetical or remote possibility … a real and significant risk of prejudice”: Hogan v IC [2011] 1 Info LR 588 at [29]-[35]; endorsed by the Court of Appeal in DWP v IC and Zola [2016] EWCA Civ 758; [2017] 1 WLR 1 at [27]."

(2)Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act...

(b)would, or would be likely to, inhibit—

the free and frank provision of advice, or

(ii)the free and frank exchange of views for the purposes of deliberation, or

would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

who was the QP?

what was the QPO?

was the QPO reasonable?

if it was reasonable then in all the circumstances of the case does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?

Role of the Tribunal

If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply (paragraph 90). That follows from section 58(2) and Birkett. As does this crystal clear statement of the tribunal’s powers and duties at paragraph 102:

… the tribunal must consider everything necessary to answer the core question whether the authority has complied with the law, and so includes consideration of exemptions not previously relied on but which come into focus because the exemption relied upon has fallen away. It cannot be open to the FTT to remit consideration of new exemptions to the Commissioner …

It follows that once the public authority has given its response to the request, it has no further role save for compliance with a decision notice of the IC or a decision of the FTT (paragraph 76). And, as I have shown, both the Commissioner and the tribunal are under a duty to consider any exemption that might apply, regardless of whether it has been raised. Once the case is before them, that is their role, not the authority’s.

So the tribunal was right to be concerned that there could be exemptions that had not been considered by either NHS England or the Information Commissioner. But it was wrong to deal with that issue by remitting the case back to the authority. What it should have done was to give directions to the authority to identify any other exemptions that might apply, to consider whether or not any did, and then to make a decision accordingly."

The four requests

request 1 (22 March 2021)(B124)

request 2 (19 April 2021)(C175)

request 3 (11 May 2021) (D201)

request 4 (12 August 2021)

In respect of each of,

the Haringey Council Capital Board; and

the Strategic Property Board (AKA the CAB Strategic Property Board),

please supply

Meeting dates

Attendees

Agendas

Minutes

for the following periods:

for the following periods:

since May 2018 to date in respect of Capital Board and

since 11 December 2018 in respect of Strategic Property

For that Board, you have already supplied some details for the meeting of that date, but Refused to supply the Minutes for that meeting (those Minutes may become the subject of further enquiries, elsewhere)

"Our ‘qualified person’ –the Monitoring Officer – has considered this request and is satisfied that elements of the minutes meet the requirement of the exemption as full disclosure of the minutes would ‘inhibit free and frank provision of advice or exchange of views; or (c) otherwise prejudice the effective conduct of public affairs.” The release of the agendas and lists of the attendees does not contravene this principle, however some redaction of the minutes will be made where s36 is applicable"

Evidence

"The withheld information is described, at high level, at paragraphs 18 and 44 of the decision notice under appeal and is also referenced elsewhere in that notice.

The Closed Bundle itself contains an unredacted copy of the final valuation report of Alexandra House by Carter Jonas in response to request one. The redacted copy of the same can be found at pages B143-B168 of the open bundle.

The bundle also contains unredacted copies of the requested/withheld information in response to requests two, three and four albeit that, due to the volume of material in response to request four, the Council only provided a sample of documents. The redacted copies of this sample can be found at the following pages of the open bundle – E230-238, E251-E253, E257, E429-E431 and E436-E446."

a video clip provided by the Appellant of a meeting with a representative of BDO (an accountancy and professional services advisory business) acting as advisers to and/or auditors of the Council

the Appellant 's written submissions prepared for the Appeal

a letter from the Council of 7 June 2024 (as closed material)

the Appellant 's written submission of the 19 June 2024

a written submission from the Council dated 25 June 2024

a witness statement of Mr Kirby dated 25 June 2024

the Appellant's comments on the Council's submissions together with various documents

BDO's audit completion report to the Council for the year ended 31 March 2020 dated 10 March 2021

provide written submissions to the Tribunal and all parties in which its open case on section 43(2) FOIA and request 4 is set out including as regards the public interest balance test at the relevant date.

provide to the Tribunal only a version of the Minutes in which the precise words only that are said to be relevant to such exemption are clearly identified together with a closed submission if needed.

provide to the Tribunal and all parties a gist of the material relevant to paragraph 3(b) of this Order."

the Appeal hearing itself had been in April 2024 and the issues related to a request made in 2021. A consideration of the new material might have resulted in further delay in particular if it was appropriate to give the Council an opportunity to make submissions on it.

while rule 2 2009 Rules refers to avoiding unnecessary formality and seeking flexibility in the proceedings there had been no request to provide further evidence and no Direction given to allow or ask for it.

of the requirement to deal cases proportionately.

request 1 of 22 March 2021

"Alexandra house is a 10-storey purpose built 54,800 sq ft office with ground floor and basement car parking providing office accommodation on Station Road, Haringey. It has for some years been used as office space by the Council. The Council took the decision to acquire the freehold of Alexandra House in February 2020. At the time of that acquisition, the Council already had a leasehold interest in the property, running until February 2021. The transaction to acquire the freehold was completed by March 2020."

"The Council was given the option of purchasing the freehold of the property which it occupied as a leaseholder, in January 2019 for £14.5m, this was not taken up and subsequently the Council purchased the property just over a year later for over £21m"

CJ Report dated 3 February 2020

the Council acquires Alex House March 2020

the Appellant ' s request 23 March 2021

the Council's Response 1 June 2021

the Council Response after review 10 November 2021

"these are commercially sensitive and therefore confidential under the FoI Act i.e. section 43(2)...This is because such information may prejudice or be likely to prejudice the commercial interests of the Council and/or another entity therefore it is not in the public interest to disclose this information."

"As such, we can withhold information that would or would likely harm the commercial interests of any party should it be released, and also if it is in the public interest to withhold the information. The exemption recognises the possibility that it may be in the public interest to disclose such information even though it would prejudice someone’s commercial interests to make it public. However, information that amounts to the disclosure of trade secrets, involves details of precise costings or working methods that would clearly affect a company’s commercial interests may be withheld."

Having considered the information you have requested, I have reviewed the decision and agree that we can release parts of the valuation to you. Please find attached parts of the valuation report from February 2020 which we can disclose.

However, you will notice that some sections of the report have been redacted. I maintain that the financial information contained in the report is commercially sensitive, on the grounds that release would likely harm the Council’s commercial interests. The financial details of the Council are sensitive by definition, and release of these specific figures would likely negatively impact future commercial ventures.

"An annual valuation of a number of Council properties is undertaken each year as part of the Council’s accounting process which included the Council’s interest in Alexandra House."

"The Council stated that its financial details are sensitive by definition, and release of such figures would likely negatively impact future commercial ventures.

The Commissioner is satisfied that the prejudice being envisaged by the Council relates to its commercial interests. His guidance explains that a commercial interest relates to a person’s ability to participate competitively in a commercial activity in this case, the commercial rental market.

Next, having examined the withheld information, the Commissioner accepts that a causal link exists between the disclosure of information about rent being paid on commercial units and prejudice to the Council’s ability to obtain the best rent. Disclosure of the withheld information could negatively impact any future negotiations with external parties, such as in seeking new tenants should the office space be let out in future.

The Council states that, if this information were to be placed in the public domain this would be likely to affect the ability of the Council to carry out any future procurement exercises as the Council’s financial information would be available to the other party.

The Commissioner considers that the envisaged prejudice would be “likely to occur” Would be likely to means that the risk of prejudice occurring is real and significant, and more than hypothetical or remote. The Commissioner considers that this lower threshold has been met."

"Again huge sums of public money were lost. The dry language of the Buss report is unsatisfying if not inaccessible for the ordinary public who deserve to know in more simple terms how their money, allegedly spent on their behalf has been used."

"The concern was that the Council effectively overpaid for the property compared to what it could have purchased the property for a year earlier."

"I have focused attention, on the deal that generated by far the biggest loss of public funds that we know of. That involved Alexandra House, a 10 storey office block, then occupied by the council as leaseholder. The council first declined an offer from the Freeholder to buy the Freehold and later, paid much more than a fair market price If it will help the Tribunal, I have available a Time Line of Milestones in the wheeling and dealings for Alex House, from the chance to buy it in December 2018, through to May 2021, when the council released the Mazars report – I may be able to answer some time-related questions from it."

"These blanket exemptions are unlikely to be the real reasons why the council refused to supply the information. In my view, these exemptions are attempts to cloud the issue. The likely reason for the refusals, are to try to maintain the council’s reputation as a competent local authority, not remotely in need of Special Measures"

"Unfortunately, the general culture of secrecy continues. At any point before today, Haringey could have changed their minds and supplied the information I requested in full. The secrecy culture helped to enable the losses and the Tribunal now has an opportunity to send a message to the council and cause a re-think. If this opportunity is not taken up, we can be confident that there will be more financial disasters of the kind I have outlined"

"What's slightly unusual in this case is that [unclear] who sold it were valuing it at £10M... there was planning gain by changing the consents and that so he was agreeing at £15.5m...you've had to pay more than that again..you have paid more than perhaps a true arms length would have been with two willing buyers. Its just unfortunate that you have found yourselves as a council in the position where because of the issue you've got on [other property] you desperately needed to maintain that accommodation there was no alternate out there. You did have to pay extra over market as a bit of a ransom how much ransom is open to debate but you over paid market value so you've had to write down effectively the £22m you've paid back down to £16m market value"

At the time of Mr Carter’s requests, the Council was considering options including putting Alexandra House to the market for sale or lease. That was a realistic prospect at that time (and it remains a realistic prospect). It involved the Council’s commercial interests as a party buying, selling and leasing property assets in its area.

The Council would seek – and would be obliged to seek – the most lucrative terms for itself and the public if it did so. Taking Alexandra House to the market would entail negotiations about the terms, including the financial terms, for that transaction.

If those with whom the Council was negotiating were to learn of a relatively recent valuation for Alexandra House – i.e. what the Council and its advisors considered to be a realistic market value (as opposed to the historic price the Council paid) – that would inevitably affect those negotiations. The other party would use that as a highly material benchmark, pressing the Council to use that valuation as an upper limit, and then seeking to push terms down (in terms of favourability to the Council). This would make it much more difficult for the Council to secure the best terms, and would risk the Council emerging with lower sums than would otherwise have been the case

This disclosure would thus have caused a real and significant risk of prejudicing the Council’s ability to secure the best financial outcome, to a real, actual and substantial extent. Even a risk (as opposed to a certainty) of any material degree of 4 reduction in financial outcome is sufficient to secure the engagement of section 43(2) FOIA.

That is what would have been likely to have happened here, if this information had been disclosed in 2021. The Council’s negotiating position regarding Alexandra House, and thus its ability to secure the best financial outcome, would have been prejudiced. That is the clear evidence of Jonathan Kirby, and it makes perfect sense in these circumstances. There is no basis on which the Tribunal should reject that evidence."

"I earlier supplied a time-line that shows that the purchase of Alexandra House was about a year before than my first FoI request and the valuation report was a little older."

I have already discussed how remote was any likelihood of the council selling the building around the time of my first request, a step that would have crystallized a massive capital loss.

The suggestion that Alex House might be resold after just a year, and rekindling huge adverse publicity, would have been politically untenable, even if a few council officers might claim this was a real possibility. A supposed resale fully meets the definition of a hypothetical situation and a remote possibility. "

"The council guards the Valuation Report figure with a fervour that is hard to justify by its real importance or significance. It is generally appreciated that all property transactions, including commercial property for sale, can and does sell above or below a formal valuation figure. This depends more on supply and demand and on a building’s current condition. A final agreed price depends much more on prevailing general market conditions, rather than on any valuation.

The CJ Report is dated 3 February 2020 and the date of my request was 22 March, 2021. In the space of 13 months, the market background can change dramatically."

Tribunal's review – request 1

page 17 of the CJ Report at para 18.1 (B160) where Carter Jonas state:-

We understand that London Borough of Haringey are purchasing the Property for £[redacted].

advice in a number of places in the CJ Report on the potential sale and/or rental value (eg B147,B160,B166) for Alex House and associated assumptions (eg B149).

we did not conclude that the information on its own was "...sensitive by definition..." or that "sensitivity" is necessarily synonymous with "prejudice"

we did not conclude that in fact Alex House was actively being considered for sale or lease.

even if wrong about the Council's intentions to sell or lease Alex House in our view the disclosure would not have been prejudicial at all or to the degree required.

"...was considering options including putting Alexandra House to the market for sale or lease."

"If those with whom the Council was negotiating were to learn of a relatively recent valuation for Alexandra House – i.e. what the Council and its advisors considered to be a realistic market value (as opposed to the historic price the Council paid) – that would inevitably affect those negotiations."

"The key point I make based on the above is that, at the time of these FOIA requests, the Council’s decisions about Alexandra House were not settled – they were live and unresolved, and there was a real prospect of the Council deciding in the relatively near future to sell or lease Alexandra House. It was vital that the Council did not prejudice its ability to secure the best terms if it decided to put Alexandra House to the market in one of the ways touched on above."

If (which was realistic) the Council decided to put this site to the market for sale or lease, there would then be negotiations and offers in the usual way. It would be crucial that, in any such negotiations, the other side does not know what your own valuation is – if it does, it will inevitably use that info to drive you down and it will be much harder to secure the best outcome for the Council and thus the public purse. The Council’s own valuation assessment would be an absolutely critical piece of information that would have been used in those prejudicial ways, with a real likelihood of the Council emerging with a lower market price if this valuation had been in the public domain and thus available to those with whom the Council may have been negotiating. I base that view on my own commercial experience of such matters and on my knowledge of the Alexandra House circumstances in particular.

The Council is therefore confident that the public disclosure of this information in 2021 would have entailed a high risk of substantially prejudicing the Council’s prospective negotiations and thus ability to secure the best financial terms. Section 43(2) of FOIA was engaged and there was very strong public interest in ensuring that those prejudicial consequences did not materialise."

while the Council's witness Mr Kirby was not employed by the Council until after the request was made he does say at para 5:-

"I am also well placed to assist the Tribunal because of my current detailed understanding of matters relating to Alexandra House based on my direct experience (which enables me to understand how matters stood at the time of Mr Carter’s requests in 2021) and because I have reviewed the relevant documents (including the withheld information) and have discussed with colleagues who support the conclusions I reach in giving this evidence."

the Council made no overt reference to prejudice due to the prospect for sale or lease when responding to the request in June 2021 or November 2021.

the Council's evidence on prejudice prior to the Appeal being part heard did not say much more than assert that the information is "sensitive by definition" which is not in any event a FOIA exemption.

while it was useful to see the witness evidence we would have expected to see some clear documentary evidence to support his statement such as redacted extracts from Minutes showing active consideration for the disposal or lease of Alex House at that time.

the Council did say:-

"However, you will notice that some sections of the report have been redacted. I maintain that the financial information contained in the report is commercially sensitive, on the grounds that release would likely harm the Council’s commercial interests. The financial details of the Council are sensitive by definition, and release of these specific figures would likely negatively impact future commercial ventures."

following Directions on 3 July 2024 further minutes were provided and these were also considered. Without undermining the rule 14 2009 Rules Direction we did not see in this material anything that overtly supported the contention that the Council was actively seeking the sale or lease of Alex House. In fact in our view the evidence (for example of the minutes of the Strategic Property CAB Sub Group of 7 July 2020 at para 3 where "Accommodation" was discussed) indicates it was not being actively considered.

a report for the Council's Cabinet of 11 February 2020 which dealt with the acquisition of Alex House provided by the Appellant opens by saying:-

This report sets out the rationale for the acquisition of the freehold interest in Alexandra House, Wood Green for use by the Council as office accommodation for an initial period (c7 years) and for longer term strategic purposes"

There is an opportunity for the Council to step in to acquire the freehold from the current purchaser, which would enable the Council to use the building as office accommodation in the medium term or longer if required, plus also control its future use alongside other development plans for the Wood Green area in due course.

again and without undermining the rule 14 2009 Direction in our view the content of the closed supplementary note from the Council on 16 August 2024 did not satisfy us that there was adequate evidence to support the contention that the Council was actively considering the sale or tenancy of Alex House.

the BDO auditor had already, prior to the request, stated as recorded on video that he thought the price paid was £22m

BDO's audit completion report dated 10 March 2021 stated on page 27 of that report that Alex House was a £22.6m acquisition and that the sum of £6m was paid for the shares in AHWGL and a further £16.6m to enable that entity to acquire the freehold.

the BDO advice had already revealed there was a gap between what they called open market value and what the Council paid – and why and page 27 of the BDO audit completion reports contains detailed commercial information on value and price

a newspaper article referred to us by the Appellant in Ham & High on 1 April 2021 stated:-

"According to council papers the authority paid £6m for the company in March 2020. Later that month the now council owned company purchased the building for the freeholder, a company called Workspace for £15.5m. In the end the acquisition cost Haringey Council £22.6m.

on 16 February 2022 the Appellant, when writing to the IC said "Later again, the council did buy the building, at a total cost of £22,600,000, a sum that included £6,000,000 that went to the shell company."

the Councils own submission to the Tribunal states (emphasis added):-

"If those with whom the Council was negotiating were to learn of a relatively recent valuation for Alexandra House – i.e. what the Council and its advisors considered to be a realistic market value (as opposed to the historic price the Council paid) – that would inevitably affect those negotiations."

the Council referred to a number of valuations including annual valuations

different values were in the public domain. Paragraph 18.1 of the CJ Report simply reports what they had been told. It may or may not have been the price actually paid by the Council.

there was considerable information in the public domain about the price the Council is said to have actually paid and the structure of the deal.

BDO in March 2021 at the meeting the subject of the Video clip when explaining why the Council had to pay over market value said "you desperately needed to maintain that accommodation.. there was no alternate out there."

of the points raised above and because in our view the CJ Report was not "recent" as said by the Council in its 25 June 2024 submission

the information is one opinion based on the precise assumptions set and in the changeable market conditions described by them

of the potentially more dramatic changes to market conditions for office space due to the changes in working patterns caused by Covid 19.

Carter Jonas themselves said (B149 para 7):-

"It should be noted that values change over time and a valuation given on a particular date may not be valid on an earlier or later date."

any entity in negotiations for the acquisition of Alex House may have had different assumptions relevant to them and would very likely have-

any prospective tenant of Alex House may not have sought a lease of the whole but even if they did they would very likely have:-

Tribunal's conclusion – request 1

request 2 -19 April 2021 (C175)

The QP

"I’m comfortable that the CAB papers are within the exemption of s36(2). Could someone confirm the status of the audit report? F"

Was it a reasonable QPO?

"The QP gave consideration to the recommendations in favour of the exemption being engaged in relation to requests 2 and 3, however they were not provided with any submissions in favour of disclosure."

"It is clear that the QP was provided with the information in question in relation to requests 2 and 4, and a description of the information in relation to request 3. There were arguments put to the QP at least in favour of maintaining the exemption in relation to requests 2 and 4, the Council states none are on record in relation to request 3. The Commissioner, having examined the withheld information, is satisfied that the opinion of the QP is reasonable."

we do not know if arguments were put forward as to why the prejudice or inhibition would apply or would be likely to apply for this request specifically or what they were

we concluded that no counter arguments were put and considered

we do not know from the QPO if the QP considered that the inhibition "would" or "would be likely" to apply

while the emails show that the relevant papers were sent to the QP and were available to be considered it is not clear to us that the QP read them – but we accept she may have done so.

from reading the closed emails that led to the QPO we gained a sense that the exemption was to be applied to the information sought as a matter of routine or by the adoption of a blanket approach rather than as a result of a specific consideration of the request

the first the QP appears to have known of the issue at all was at 18.42 on the 26 May 2021 and the last element of advice was delivered at 14.53 the next day with the QPO emailed just 19 minutes later.

when staff at the Council were thinking about the exemptions there appears to have been a disproportionate focus on whether the QP would be available rather than a consideration of the specifics of the actual request.

we do not know from this contemporary evidence what limb of section 36(2) was envisaged or if this detail was considered at the time.

"Initial response applied Section 36 to the details of the meeting and associated documents. We released the Mazars report with redaction of name of officer. At internal review we determined the use of s36 was legitimate, in part, relating to the minutes and reports associated with the meeting as disclosure of these would ‘inhibit free and frank provision of advice or exchange of views; or (c) otherwise prejudice the effective conduct of public affairs.” We released the agenda and list of the attendees but maintained the S36 exemption for the minutes held. "

and

The Qualified Person’s opinion was sought on 26 May 2021 and provided on 27 May 2021. Decision was that s36(2) was applicable.

The QP had access to the request and the information being considered.

that the QP had access to submissions supporting the recommendation but was provided with no contrary arguments supporting the position that the exemption was not engaged.

"However, the submission made to support the opinion may be relevant to the ICO’s assessment of whether it is reasonable. Therefore, it is in your interest to provide all the evidence and arguments that led to the opinion in order to show that it was reasonable. If the qualified person makes an assertion that appears on the face of it to be an unreasonable opinion, we are likely to find the exemption is not engaged. But if you have supported it by argument and evidence that relevant factors have been taken into account, it may be evident that it is at least a reasonable opinion. Section 36(2) is expressed in broad terms, and for the opinion to be reasonable, it must be clear as to precisely how the prejudice or inhibition may arise. "

request 3 (11 May 2021) (D201)

Who was the QP and what was the QPO?

Was the QPO Reasonable

"The meeting allows officers to discuss and debate proposals relating to the Council’s corporate property and includes commercially sensitive information."

"That disclosure of the information would not have the effect contended for, because officers should not feel inhibited by the prospect of disclosure of their discussions"

"There must be a safe space to allow free and frank discussions between the organisations to ensure that all relevant policy options can be explored; if such exchanges are to be disclosed, they will have an inhibiting effect on those discussions. I do not accept that officers can be expected to ignore the prospect of disclosure of discussions of this nature."

when answering the IC's questions about this QPO the Council said (F513) in November 2022 that there was no record that the QP was provided with any information supporting a recommendation that the exemption was engaged nor any counter arguments- where as in fact the QPO form boxes 9 and 10 suggests that there were.

when the Council responded to the Appellant after the internal review they added a reference to section 36(2)(c) FOIA (D213) which had not been asserted in the QPO

in the DN the IC said that they concluded that the inhibition would only be likely to occur and not "would occur" - but that is what the QPO asserted

in the DN the IC says "...It follows that his decision is that the Council was entitled to rely on sections 36(2)(b)(i) and (ii) of FOIA to refuse the request." but subsection (i) had not been claimed in the QPO.

The PIBT (request 3)

because it would serve the public interest in terms of there being transparency in various areas of decision making (A9)

to ensure the Council was open "to enquiry..." (A21)

because of the alleged large sums of public money involved which the Appellant says (A21) was "misused and abused"

because the ICO should (says the Appellant) have recognised that the background was "far from normal indeed, exceptional and should have enabled a light to shine"(A23)

to assist with public trust and confidence in the Council (A99)

to enable lessons to be learnt and to be seen to have been learnt (A99)

to ensure question are not swept under the carpet (A99)

to avoid it happening again

because significant weight should be placed on the view that "these Board meetings are an opportunity at an early stage for senior officers to have their views heard and openly discuss options regarding a wide range of subjects, before they are put forward into the Council s formal decision-making process."(A9)

to enable there to be a safe space for officers "to be heard and to discuss frankly each and every aspect of the relevant subject. This is likely to include what the Council describes as sensitive information."

to avoid a "chilling effect" referred to. Although the IC gave little weight in the DN (A9) to this the Council in its submissions at para 18 reiterates this point and refers to Department of Health and Social Care v IC [2020] UKUT 299 (AAC) (27 October 2020) which in paragraph 28 said:-

The case law refers to the "chilling effect" on candour among officials that would be caused if internal discussions on the formulation and development of policy were not exempt from publication. In any particular case, the chilling effect need not be proved by evidence (Department of Work and Pensions v Information Commissioner, JS and TC [2015] UKUT 0535 (AAC), para 13). The phrase "chilling effect" helps to express (in shorthand form) the objective of the exemption– which is to avoid inhibitions on imagination and innovation in thinking about public policy issues.

because the public interest in protecting the Council's ability to decide on "effective policy options without external interference, outweighs the public interest in transparency (which would be served, to some extent, by the information already disclosed to the complainant."

that the QP considered that this was the right approach (DWP v IC and Zola [2016] EWCA Civ 758 (see [55])

request 4 (12 August 2021) (E226)

Who was the QP, what was the QPO and was it reasonable?

on the QPO form it states that the QPO was requested on the 26 May 2021 which was before the Appellant 's request 4 was made and the identical date as for the form for request 3.

apart from the date at the foot of the form it is identical to request 3.

the refusal (page E228) and internal review (E420) referred to section 36(2)(c) FOIA but that was not something stated in the QPO

The PIBT

in the 10 March 2020 Minutes redacted material included unnamed staff being thanked and arrangements for Members.

in the 12 May 2020 Minutes redacted material included a comment about the need to work with finance on a project.

in the 7 July 2020 Minutes redacted material included the statement about items from the previous meeting being the agenda and that one councillor had no questions.

in the 29 September 2020 Minutes redacted material included that an item was introduced and that a councillor delivered a presentation and that councillors asked to be kept updated.

in the 27 October 2020 Minutes redacted material included an apology for late papers.

in the 12 January 2021 Minutes redacted material included questions being asked by councillors and that details would appear on the Council's website.

in the 16 February 2021 Minutes redacted material included a question about the timing of reports.

in the 20 April 2021 Minutes redacted material included a comment for example that messaging needs to be right.

"Note that these exemptions are about the processes that may be inhibited, rather than what is in the information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. To engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.'

in our view the Council had not done enough to illustrate that it had considered the potential public interest grounds for disclosure when carrying out the consideration of the PIBT and we formed the view that it had not been adequately considered if at all.

we could not see that the Council had considered the timing of the consideration for the PIBT being October 2021 despite Direction 3(b) of the 3 July 2024.

(c) we noted in particular the involvement of elected Members in these relevant meetings which in our view can shift the balance towards disclosure subject to all other circumstances and did so in this Appeal.

the Appellant, told us that these Boards involved Cabinet Members and other Senior Councillors, and the case for disclosure was thus stronger.

we had regard to the significance of the property transactions and for example, the matters raised in the Buss Report and by Mazars.

Request 4 and section 43

on page B1 (or 34 of 62) while we could see that the 1st redacted part would engage section 43 the corporate information available at companies house did not

on the same page the date of a workshop would not

the 1st line of B2 (35 out of 62) would not but the information under the heading Munro Works would.

on B3 the sentence about covid would not

the redactions on B9 would not

the material under the heading Property Governance Review would not

on B18 the Cloud Garden update would (51 of 62) but the information about the Minutes would not

on 57 of 62 B24 the two bullet points under the heading Cllr Adje seems to have nothing that would engage section 43

none of the redactions on page B25 or B26 contain commercial information

provide to the Tribunal only a version of the Minutes in which the precise words only that are said to be relevant to such exemption are clearly identified together with a closed submission if needed.

" In relation to prejudice-based exemptions there is always an inherent public interest in maintaining the exemption which should be considered when the public interest test is applied"

"That public interest will be particularly weighty where, as here, the commercial interests being prejudiced relate to public finances."

"If the Council’s commercial position were to be undermined by disclosure of this kind of information, it would affect public services and, by extension, the residents who rely on them."

The Council is duty-bound to secure value for money in all of its commercial dealings, on behalf of ratepayers and as a matter of good public administration. If the Council’s commercial position were to be undermined by disclosure of this kind of information, it would affect public services and, by extension, the residents who rely on them. This is particularly pressing given the financial and economic situation at the time of the response to the Request (and indeed continuing).

"Conversely, there is little public interest in releasing the information."

"In view of the information which is made public via alternative channels and at the appropriate time, the marginal increase in accountability and transparency as a result of disclosing the withheld information is slight, and amply outweighed by the public interest in avoiding the prejudice identified above."

"the Council shall by 12 noon on 19 November 2024:- (a) provide written submissions to the Tribunal and all parties in which its open case on section 43(2) FOIA and request 4 is set out including as regards the public interest balance test at the relevant date."

Aggregation of the PIBT

"Where more than one qualified exemption applies to any information, the Tribunal should consider the combined or aggregated public interest in maintaining the exemptions against the public interest in disclosure, as the public interest “must logically encompass all the prejudicial consequences of the envisaged disclosure of the (provisionally) exempt information that arise in all the circumstances of the case … In principle, all the public interest considerations for and against disclosure should be weighed in the balance together”

Decision

request 1: the exemption at section 43(2) FOIA was not engaged because the release of the confidential information would not be prejudicial.

request 2: the QPO was not reasonable

request 3: the QPO was reasonable, the exemption engaged and the PIBT favoured maintaining the exemption

request 4: (a) the QPO was reasonable and the exemption engaged in part however the PIBT favoured disclosure and (b) section 43(2) FOIA was engaged in part but the PIBT favoured disclosure.

Signed: Tribunal Judge Heald Dated 6 January 2025