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Judge orders fresh hearing in dispute over disclosure of advice to council on tactics in negotiations with supermarket giant

An Upper Tribunal judge has set aside a decision by a First-tier Tribunal (FTT) that upheld – after a freedom of information request – the withholding of an agent’s advice to a local authority on the tactics it should apply in negotiations with Tesco over a proposed development.

In Ryan v Information Commissioner (error in point of law) [2020] UKUT 54 (AAC) [published on Bailii this week] Upper Tribunal Judge Jacobs remitted the case to the FTT for rehearing by a differently constituted panel.

The supermarket giant had acquired the land in question for a proposed development. Judge Jacobs said that, “as is often the case when land is sold for development”, there was provision for the developer to make provision that is beneficial to the community.

By 2015, Tesco had decided not to proceed and sold the land on.

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Before then, Mr Ryan had become interested in the negotiations between the local authority and Tesco, and in particular about advice that the authority received from its agent.

In 2017, he made a request under the Freedom of Information Act 2000. It was dealt with under the Environmental Information Regulations 2004 (SI No 3391).

Following a complaint to the Information Commissioner, all the information that Mr Ryan had asked for was disclosed with the exception of one passage, which the Commissioner decided was an exception under regulation 12(5)(e) on the ground that “disclosure would adversely affect ... (e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

Accordingly, regulation 12(1)(b) provided that the information had to be disclosed unless ‘in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.’

This had to be applied in accordance with regulation 12(2), which provides: ‘A public authority shall apply a presumption in favour of disclosure.’

On appeal, the First-tier Tribunal confirmed the Commissioner’s decision, save for one sentence that it ordered to be disclosed.

Judge Jacobs said the information that was withheld related to the tactics that the local authority should apply in negotiations with Tesco.

The FTT had accepted that there was a 'significant public interest in understanding what had happened' on the basis of the argument put by Mr Ryan at the hearing.

As a result of Tesco’s decision to pull out, the area’s health and social care centre has been moved into the library – which, it was said, was an unsuitable space for this service. The move also halved the size of the library.

The FTT said Mr Ryan’s position was that whatever negotiation strategy was used by the council, it had clearly failed and the public should know what this was in order to call the council to account for failing to further the public good.

However, the tribunal decided that this was outweighed by the public interest in maintaining the exception. The information related to “negotiation tactics on a specific topic”and “there is a clear public interest in allowing the council to approach negotiations on a level playing field”.

Disclosure of specific negotiation tactics would undermine the council’s ability to negotiate similar deals with land owners on a commercial basis, as those land owners would be aware in advance of the council’s likely tactics, the FTT said, adding that it was “clearly in the public good for the council to be able to conduct effective commercial negotiations”.

However, Upper Tribunal Judge Jacobs said he considered that the FTT’s reasoning on the case for maintaining the exception to be flawed.

“It takes no account of the content of the information. I have read it and it seems to me to contain nothing unique or unusual. It is the sort of advice that a local authority would generally be given in the circumstances. As anyone involved in selling or acquiring land for large scale development would surely have their own advisers, it is also the sort of advice that would be anticipated by the other side. If that is right, making it public would not hamper a local authority in the ways identified by the tribunal,” he argued.

Judge Jacobs said he was not saying that his reading of the information would necessarily result in the balance shifting to favour disclosure. "That is why I have remitted the case for rehearing, when the knowledge and experience of the specialist members will assist the tribunal to decide how that balance should be struck. My concern is that the tribunal did not take the factors I have mentioned into account, at least so far as its written reasons show.”

He added: “It is possible that, if the information would be well known to anyone advising on development issues, disclosure would not do much to further the public interest as set out by Mr Ryan. The test for the balance of public interests is a comparative one, so that the weaker the case for one side, the less the public interest on the other side needed to outweigh it.”

The tribunal did make the point about the lack of value in the information if disclosed, Judge Jacobs said, but it did not show how the presumption in favour of disclosure might shift the balance in Mr Ryan’s favour.

He said: “When I gave permission to appeal, I was also concerned that the tribunal appeared to be saying that it could not take account of material that was not before the Commissioner and that the case involved the exercise of a discretion.

“Having read the submission from the Commissioner, which does not support the appeal, I am satisfied that there was no discretion involved in this case. And having re-read the tribunal’s written reasons, I am also satisfied that, whatever the tribunal may have meant, it did not restrict Mr Ryan in the case that he put on the public interest. I need say no more on this point.”

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