Information Tribunal orders NTC to Publish Cracks Reports, NTC orderd to publish hydrogeological reports by 2 May Options

[Simon Kirby]

Linky

The Information Tribunal has ruled that the public have a right to see the hydrogeological reports and NTC have been given until the 2nd of May to publish them.

After all the public talk about not being able to publish because of a "confidentiality agreement" the Council didn't even argue that point with the Information Tribunal and instead assert litigation privilege in the reports. However, the Tribunal agreed with the appeal and found that the reports were not legally privileged, but went further and said that even if they had been the public interests would still have been string enough to override any objection to publication.

It should never have taken this much effort to see the reports - and the Council might yet ask leave to appeal the judgment which will delay publication until after the election - but point is the Council should have been open about the reports from the off, and then there would have been much less cynicism about the sense of pursuing the claim. As it is it'll be interesting to see if the reports do indeed support a four and a half year dispute.

 cracks_judgment.pdf ( 440.57K ) Number of downloads: 39

[Andy Capp]

I'm not sure if I have misunderstood the judgement, but it seems to say that any CA was not obtained through legal means. When the request to see the CA was it submitted, was it supplied? All I have seen is an email that referenced an agreement.




As have said before, I simply don't understand why the council have done what they have appeared to have done. They could have said the evidence is weak for the de-watering to be the problem and that would have been that. I do remember at the time they said one of the early investigations required more information that was needed from the developer. Perhaps the developer's information is damning, but the council are embarrassed about their strategy of obtaining inadmissible evidence. Perhaps that was a mistake by an individual they wish to conceal?

[Simon Kirby]

I'm not sure if I have misunderstood the judgement, but it seems to say that any CA was not obtained through legal means. When the request to see the CA was it submitted, was it supplied? All I have seen is an email that referenced an agreement.

That e-mail was it. Can you quote the bit of the judgment where you say it says the CA wasn't obtained through legal means - that's not how I'm reading it.

There are several exceptions to the duty to disclose under the Environmental Information Regulations and one of those exceptions is for information provided in confidence: "a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ... the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;"

The Council didn't rely on that exception before the Tribunal. It would appear that they tried to make that argument late in the day in a private submission to the Tribunal but the Tribunal rejected it because they would have had to have asked for permission to introduce a new argument so late into the proceedings and they didn't have the courtesy to do that, and because the made the argument in a secret submission to the Tribunal when there was nothing sensitive to protect which simply denied the appellant the opportunity to challenge it.

The Tribunal didn't need to consider the Council's submission, but it did anyway and found that the CA wasn't protecting any economic interest of Costains - I'm curious to know quite why Costain would want the data it supplied to the Council kept secret - it's entirely possible that they couldn't actually give a stuff and that NTC had written to them asking for them to impose just such a condition - they could blame Costain for not publishing the reports but it was NTC's choice all along. That last bit is manifestly true because NTC asserted (non-existent) litigation privilege in the reports in order to try and keep they secret, but who initiated the CA is anyone's guess. NTC should have a record of that discussion, but can you be bothered to wait another 16 months to see it?

As have said before, I simply don't understand why the council have done what they have appeared to have done. They could have said the evidence is weak for the de-watering to be the problem and that would have been that. I do remember at the time though that they said that one of the early investigations needed more information that was needed from the developer. Perhaps the developer's information is damning, but the council are embarrassed about their strategy of obtaining inadmissible evidence. Perhaps that was a mistake by an individual they wish to conceal?

Yes, that's one of the possibilities that occurs to me.