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Confidentiality of Dispute Resolution Trumps Information Rights

In a ruling which helps to define the right balance between freedom of information rights and the beneficial maintenance of confidentiality in the resolution of commercial disputes, the First-Tier Tribunal has refused a campaigner’s request for public disclosure of large numbers of documents relating to a controversial public transport project.

The campaigner had sought voluminous information relating to the project and disputes that had arisen between a local authority and a contractor in respect of alleged cost over-runs and delays. The dispute had been the subject of no less than four adjudication processes and the issues between the parties were awaiting resolution before the Technology and Construction Court.

TramThe Information Commissioner had refused the campaigner’s request on the basis that such broad disclosure could have a serious impact on the progress of those proceedings and would undermine a confidentiality agreement signed between the parties as part of their on-going attempts to settle the matter.

In dismissing the campaigner’s appeal against that decision, the Tribunal noted that the importance of confidentiality in the promotion of alternative dispute resolution was well recognised. An element of privacy acted as a powerful encouragement of openness and candour between the parties in their quest for common ground.

Whilst the Tribunal was ‘acutely conscious that secrecy should not be an objective of a public authority in the general conduct of its business’, it found that the public interest was in the circumstances ‘very strongly in favour’ of maintaining the parties’ confidentiality and not directing disclosure.

The Tribunal observed that the basic facts of the dispute, includinjg that it involved claims and counter-claims totalling £103 million, were already in the public domain. In those circumstances, the value of disclosing the very detailed material requested by the campaigner was limited and the potentially adverse impact such disclosure could have on resolution of the dispute substantial.