Judgement has been reserved until a later date in a case which this week saw waste management company Veolia renew its legal battle to prevent public disclosure of details of its £850 million PFI-funded contract with Nottinghamshire county council.
During a two-day hearing (July 5 and 6) the company said disclosure of highly sensitive and commercially valuable information about its dealings with the council would be a violation of European and human rights laws.
But now, in a case which raises unique legal issues relating to commercial confidentiality, Veolia is bidding to overturn that ruling at London's Civil Appeal Court, with the ruling expected to have major implications for other waste and recycling contracts.
Philip Coppel QC, for Veolia ES Nottinghamshire Ltd, said the information has “high commercial value” and the company had “devoted much time, money and effort” to acquiring it.
He added that the wording of the contract imposed “obligations” on Nottinghamshire to maintain the confidentiality of the commercially sensitive information.
Attacking Mr Justice Cranston's decision, the QC said he had been “indifferent” to Veolia's privacy rights, treating them as “of no consequence”, before ruling that Mr Dowen could inspect and copy confidential documents.
That, said Mr Coppel, had “created a mischief” by greatly widening the circumstances in which commercially sensitive information must be disclosed in the field of public contracts.
European law
Making any commercially sensitive material available to a direct competitor could potentially have an adverse effect on the benchmarking process
Veolia spokesman
What the judge should have done, argued the barrister, was apply the principle of European law that the protection of confidential business information must be “balanced” against access rights.
Describing Veolia as “a legal person”, with the all the rights of an individual, Mr Coppel also told the court that the judge's ruling conflicts with Article 8 of the European Convention on Human Rights, which protects the right to respect for privacy.
The confidential information – described by Mr Coppel as “a valuable economic asset” and a “possession” – is also protected by Article 1 of Protocol 1 to the Convention which forbids unjustified interference with private property.
Mr Coppel said Mr Dowen is now seeking disclosure of even more details of the company's dealings with the council and has argued that, once he receives the information, “he can lawfully do what he likes with it, disseminating it to whomsoever he pleases”.
Appeal Court
Appeal Court judges, Lord Justice Rix, Lord Justice Etherton and Lord Justice Jackson, will also be asked to rule on the extent of disclosure, if any, that should be made and Mr Dowen's rights, or lack of them, to disseminate the information more widely.
Mr Justice Cranston last year ruled disclosure of certain details of the company's contract – along with the amounts on monthly invoices and the company's “performance scorecard” – should be made to Mr Dowen.
Nottinghamshire said it was obliged to do just that by the 1998 Audit Commission Act, which gives local government electors the right to object to items in their authority's accounts when they come up for inspection by auditors to ensure they are getting value for money.
But Veolia has always complained that to disclose unredacted details of its contract with the council and invoices indicating how much it charged for its services would breach its right to confidentiality and seriously damage its ability to compete with other contractors.
Mr Justice Cranston accepted that the 1998 Act does “not create the type of general-freestanding right of access to information as conferred by modern information rights legislation”.
Parliament's motive in passing the Act had been “democratic accountability, rather than the policy of transparency and openness behind the modern legislation”.
However the judge said it was “plain” that the disputed documents relate to the council's accounts and financial activities and Mr Dowen was entitled to inspect and copy them.
Friends of the Earth
I am disappointed that Veolia has strung this matter out by appealing and look forward to disclosure of the information that I am entitled to see
Shlomo Dowen, People Against Incineration
Mr Dowen was represented by Friends of the Earth's Rights and Justice Centre, and ahead of the hearing the campaign group's head of legal Phil Michaels, hailed the judge's original decision and said he believed that it would be upheld following this week's hearing.
“The judgment was a tremendous victory for freedom of information and the residents of Nottinghamshire – we look forward to it being upheld by the Court of Appeal.
“Veolia must come clean about its waste disposal contract and allow council tax payers to see how vast sums of their money is being spent, and how their rubbish is being disposed of.”
His sentiments were echoed by Mr Dowen who said, before the hearing, that the October 2009 judgement “strengthened our right to see how public money is spent buying public services from large corporations. I am not convinced that Nottinghamshire Council is getting best value for our money.
“I am disappointed that Veolia has strung this matter out by appealing and look forward to disclosure of the information that I am entitled to see,” he added.
Speaking to letsrecycle.com today (July 7) about the case, Gita Parihar from Friends of the Earth, who represented Mr Dowen during the hearing, outlined the arguments they had made for the release of the information.
Mr Dowen's request was made under the Audit Commission Act 1998, with Friends of the Earth claiming the law gives members of the public the legal right to access all contracts, books, bills and accounts of a public authority for 20 working days a year to allow them participate in a local audit process.
Ms Parihar said: “We say that the waste contract between Veolia and Nottinghamshire county council clearly relates to the Audit Commission Act 1998 and if we can see it we can see if it provides value-for-money.”
She claimed that there were “no limitations” on details that could be released and that it would be a “big burden” for local authorities if they had to decide what the limitations should be and “if those were legitimate or not legitimate”.
“Where a contract is signed by a public authority it is particularly important,” she added. “If Parliament wanted to add in something related to commercial confidentiality that's the body to do it. It shouldn't be left to local authorities.”
Veolia statement
In a statement following the hearing, Veolia said: “We first requested a legal ruling on this issue because we wanted to give clarity to local authorities, the general public and the waste management industry.”
“It's really important to look at this issue in the wider sense. Making any commercially sensitive material available to a direct competitor could potentially have an adverse effect on the benchmarking process. This could mean an increased cost to the local taxpayer and that is something that must be taken very, very seriously.”
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