Public and Regulatory Law Update - November 2010

Veolia v Nottinghamshire County Council
Court of Appeal decision to protect confidential information

Issue

The Court of Appeal has ruled that legislation requiring public bodies to disclose documents relating to their audited accounts should be "read down" to provide protection for confidential information, despite the absence of any express provision.

Section 15(1) of the Audit Commission Act 1998 ("ACA") gives "interested persons" the right to inspect and make copies of a public body's accounts to be audited and related documents, with no exception for commercially sensitive or confidential information. The Court of Appeal held that confidential information is a "possession" that benefits from the right to peaceful enjoyment granted by Article 1 Protocol 1 of the European Convention enacted by the Human Rights Act 1998 ("HRA") and s.15(1) should therefore be read down so as to protect this right.

The Court of Appeal's willingness to read down the ACA to protect confidential information is relevant to the interpretation of any statute that requires a public body to disclose documents provided by a third party. Where the legislation does not contain an exception for confidential information, this decision indicates that the court will adopt a purposive approach and imply protection. This may be of particular relevance to the legislation governing disclosure of information relating to public procurement and the tendering process. The Court of Appeal decided not to state a specific test, so public authorities will in future have to carry out a balancing exercise between the public interest in disclosure and the need to protect confidentiality.

Read the complete article here

Lawyers Robert Vidal, Louisa Penny