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Tribunal dismisses bid to get board minutes for South West One via FOI

The First-Tier Tribunal (Information Rights) has dismissed a bid to obtain the board minutes of the high-profile South West One joint venture through a freedom of information request.

South West One is owned by IBM (75%) and three public authorities (25%) – Somerset County Council, Taunton Deane Borough Council and Avon and Somerset Police Authority.

In Orr v The Information Commissioner and Avon and Somerset Police Authority EA/2012/0077, Mr Orr requested copies of South West One board minutes held by the police authority from April 2010 to the end of March 2011. There were four sets of board minutes covered by that period.

The police authority refused the request, relying on s. 41 of the Freedom of Information Act on the basis that the minutes had been received from the joint venture in confidence. It maintained that stance following a review.

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The Information Commissioner’s Office upheld that refusal, saying the requirements of s. 41 had been satisfied. The ICO also concluded that there was no evidence that the joint venture agreement between IBM and the three public authorities and the service delivery contract between the police authority and South West One were being used to circumvent FOIA improperly.

Orr appealed. His ground of appeal was initially that the ICO should have found that SW1 was a public authority to which FOIA applied. But the Tribunal said this was “wholly misconceived” and “doomed to fail”.

However, the Tribunal declined to strike out the appeal as it had not seen the information requested nor the evidence of the deputy chief executive officer of the police authority. It said it could not therefore property judge whether the information was confidential in nature or whether a powerful public interest might demand disclosure anyway.

In its ruling, the Tribunal said it was “undeniable” that the police authority received the requested information from a third party (South West One) and that it was imparted on expressly confidential terms.

The Tribunal added that the minutes, which it had read, contained references to commercial initiatives and perceived opportunities, “clearly confidential in nature, disclosure of which would have been detrimental to the commercial interests of South West One”. The minutes also recorded discussions on a range of matters affecting the running of the venture.

Orr said he would have been prepared to accept the excision of sensitive names. This approach was rejected by the Tribunal.

“Board minutes are, by their nature, confidential information,” it said. “They record disagreements and minority opinions. They should frankly describe the inner workings of the company, whenever significant issues are discussed. It is important in the shareholders’ interests, that board minutes fully reflect what has been transacted.”

The Tribunal said it was in no doubt that disclosure of the minutes would have been detrimental to South West One’s interests.

On the issue of the public interest, the Tribunal said: “We have regard, on the one hand, to what is already in the public domain and, on the other, to the undoubted importance of transparency in the operation of joint ventures, in so far as that is consistent with the proper commercial interests of the company thereby created, here SW1.

“If a joint venture company has been formed for the specific purpose of frustrating the duties of disclosure enacted in FOIA; if public funds are being needlessly squandered in a badly–managed business; if serious conflicts of interest are or may be distorting the company`s operations, then there may be a strong case for disclosing information which reveals such facts, on the ground that disclosure by the requested public authority (here ASPA) would not be actionable.”

However, the Tribunal said this was not the case here. “There is no improper attempt to hide information from a FOIA request. Whether or not the criticism of South West One`s performance is justified, whether or not improper conflicts of interest have been permitted, the minutes shed no light on such issues,” it said.

The Tribunal said it saw no legitimate public interest in disclosure of the minutes, and therefore upheld the ICO’s decision that the police authority could rely on s. 41.

The Tribunal went on to say: “It is perhaps worth observing that, whilst the use of a joint venture company may create a ‘democratic deficit’ as regards the availability of the s.41 exemption, the position is less clear, as regards s.43(2) [prejudice to commercial interests].

“If one or more public authorities decide to engage in a commercial venture, most probably but not inevitably, through a limited company of which it or they is/are shareholder(s), such a company is a public authority by virtue of s.6 of FOIA but, as such, entitled to invoke s.43(2) to protect its commercial interests in response to, for example, a request for disclosure of its minutes.

“A similar request to the public authority shareholder could likewise be met by reliance on s.43(2). So when commercial interests are at stake, the elector`s right to know may not be significantly greater where the venture company is owned solely by a public authority rather than by a combination of public authorities and private investors.”

Anya Proops of 11KBW was counsel for the police authority.

Last month it emerged that South West One was suing one of its founder authorities, Somerset County Council, in a row over payments for procurement savings. The authority rejected the claims and said it would make counter-claims where it felt it had suffered losses.

 

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