Professional reports written by seconded consultant not ‘internal communications’

JuLi Lau, Sharpe Pritchard

Opportunities for secondments have increased greatly between public sector organisations and their professional advisers, as all parties usually benefit from the arrangement.

While a secondee who is a good fit may soon feel like part of in-house team, it is important to remember their official status. A recent case has confirmed that council reports written by a seconded external consultant are not exempt from disclosure under the Environmental Information Regulations on the basis that they might be considered ‘internal communications’.

Juli Lau, associate in the procurement team at Sharpe Pritchard, explains in more detail the case of East Devon District Council v Information Commissioner EA/2014/0072 (5 May 2015).

Background

East Devon District Council had contracted with construction consultants Davis Langdon for the services of their consultant Mr Pratten. He wrote a number of reports for the council concerning its proposed office relocation. Along with council meeting minutes on the same matter, these reports became subjects of a request for information made under the Environmental Information Regulations 2004 (EIRs).

Issues

It had been decided by the Information Commissioner, and not disputed by the parties, that the information was ‘environmental’ for EIRs purposes. The Information Commissioner agreed the council minutes were ‘internal communications’ and so exempt from disclosure under Regulation 12(4)(e), and the public interest test also favoured them being withheld. However the consultancy reports did not fall within that exception. The council disagreed, arguing that Mr Pratten was sufficiently embedded within the council for his reports to constitute internal communications.

Decision

The First-tier Tribunal (Information Rights) agreed with the Information Commissioner’s view that the reports were external communications. Mr Pratten was employed by Davis Langdon and seconded to the council as an independent expert to advise on behalf of Davis Langdon, who invoiced the council monthly for these services. Mr Pratten’s role was distinguished by the tribunal from that of a council employee or decision-maker because he provided input on behalf of Davis Langdon. He did so with their authorisation and with the obligation to report back to them with draft reports, which were reviewed by them, and that were written in his name and theirs. Other details regarding the practical arrangements between Mr Pratten, Davis Langdon and the council led the tribunal to find as a fact that the reports were provided externally and subject to sign off by Davis Langdon.

The council also argued that Mr Pratten had access to confidential and sensitive information and that such information was in the reports. While the tribunal accepts this, it did not consider that this led to the reports being internal communications.

The council’s arguments that the commercially confidential information and ‘course of justice’ exceptions under the EIRs apply, are pending further decision by the tribunal.

The tribunal went on to clarify that the EIRs exceptions to disclosure must be interpreted restrictively, in accordance with the European directive from which it originates. Any interpretation must also give effect to the Aarhus Convention, which indicates that studies commissioned by public authorities from related but independent entities, especially if disclosed by the public authority to a third party, cannot be internal communications. The tribunal found that this is analogous to the reports in the present case, which it considered to have lost any ‘internal’ quality once it was disclosed to Mr Pratten’s colleagues at Davis Langdon.

Lessons learned

Public authorities should ensure that where relevant, its employees should be made aware that the ‘internal communications’ exception under the EIRs may not apply to communications with those of their colleagues who are seconded from other organisations. Other exceptions to disclosure under the EIRs may apply, but a narrow approach will be taken to their interpretation.

For more information contact Juli Lau on 020 7405 4600 or email jlau@sharpepritchard.co.uk

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