Council fails in appeal over FOI request and commercial prejudice

Hartlepool Borough Council has lost an appeal against a ruling by the Information Commissioner because it failed to provide evidence of what harm to commercial interests would be done by disclosing material dating from 2005 and relating to the transfer of ownership of Durham Tees Valley Airport.

In the First-Tier Tribunal General Regulatory Chamber (Information Rights), Judge Anisa Dhanji said neither the council nor property firm Peel had shown any convincing reason for keeping private details of the deal they did over the airport.

John Latimer had made a Freedom of Information request for papers relating to how ownership of 75% of the airport came to be transferred by the six Tees Valley local authorities to Peel.

Some information was provided but the council withheld the rest - though it later made further releases - and Latimer took his case to the Commissioner, who ruled in his favour.

Giving judgment in Hartlepool Borough Council v IC & (Dismissed : Freedom of Information Act 2000) [2018] UKFTT 2017_0057 (GRC), Judge Dhanji noted Hartlepool had not put forward any submissions or witness statements for this appeal.

She said: “It is not clear to what extent the council is still relying on prejudice to its own interests, but we entirely agree with the commissioner’s assessment…we do not find that the council has established that disclosure of the information would or would be likely to prejudice its commercial interests,”

Peel’s case asserted that disclosure could weaken its position in negotiations with potential new investors in the airport and could be used by competitors against it.

“What Peel has completely failed to do, however, is to support its assertions with evidence,” the judge said.

“There are no witness statements, and no evidence or even arguments to link the disclosure of any specific aspect of the information with any specific business interests that would or would be likely to be prejudiced by its disclosure.”

Peel had “failed to show the causal link between the disputed information and the claimed prejudice”, the tribunal concluded, ordering Hartlepool to send Latimer the information within 35 days.

Mark Smulian