Council wins right to redact more info from variation agreement to waste contract

A county council has won an appeal to the First-Tier Tribunal over a decision by the Information Commissioner’s Office that it was not entitled to redact certain information in a variation agreement to a waste disposal contract.

The case of Worcestershire County Council v IC & Mercia Waste Management Ltd (Part Allowed : Environmental Information Regulations 2004) [2017] UKFTT 2015_02 concerned financial, commercial and technical information contained in the main body of, and annexes attached to, a variation agreement entered into between the council and Mercia Waste Management on 21 May 2014.

The original contract had been entered into in 1998. The variation agreement was entered into to record changes required to reflect the abandonment of the original Waste to Energy Plant and its replacement with the Hartlebury Plant.

The FTT concluded that a decision notice issued by the Information Commissioner on 18 August 2015 was not in accordance with the law, to the extent that it decided that the council was not entitled to redact information in the variation agreement before its disclosure, beyond a limited amount of financial figures and formulae identified in the decision notice.

“In our view a substantial quantity of additional information may be withheld on the ground that it is covered by regulation 12(5)(e)of the Environmental Information Regulations 2000 (“EIR”), [and to a limited extent regulation 12(5)(c)], and that the public interest in maintaining the exception in each case outweighs the public interest in disclosure,” the FTT said.

The judgment set out in a confidential schedule those elements of information the tribunal considered should be redacted, and in a second schedule that information it concluded should be disclosed.

The Information Commissioner’s decision notice had recorded that the council had failed properly to explain how disclosure of the substantial quantity of non-financial information it sought to withhold would prejudice the interests of itself, Herefordshire Council (another council involved), Mercia, or any of its subcontractors.

However, Worcestershire presented “a very different case” on its appeal to the FTT compared to the “limited and unparticularised case” it had made to the Information Commissioner.

The Tribunal said it had been persuaded, “in light of the additional grounds relied on and the argument and evidence in support, that a great deal more of the variation agreement should be redacted before disclosure than the Information Commissioner was prepared to allow".