THE UK’s information watchdog has ruled against Mid Devon District Council (MDDC) for refusing to provide a former council leader with a full copy of an external report into its controversial housing firm 3 Rivers.

Barry Warren, who briefly led Mid Devon District Council for three months last year but was on the council from May 2019, requested to see the full report, as well as the terms of reference for auditor Francis Clark that dictated the scope of its investigation.

While Mr Warren has now been given the terms of reference after the council was contacted by the Information Commissioner’s Office (ICO), it claims it doesn’t legally have to release the full report.

However, the (ICO) said that Mid Devon must disclose the information within 30 days from the date of the notice – Friday, April 19 – and that failure to comply may be “dealt with as a contempt of court”.

MDDC commissioned the report from Francis Clark in March last year, asking it to explore options for the future of 3 Rivers.

In August, a cabinet meeting recommended the “soft” closure of 3 Rivers – essentially requiring it to finish existing projects but preventing it from taking on new ones – on the back of the report, a move ratified by full council a month later.

Mr Warren submitted a request for the full report in October last year, stating that both Torbay and Exeter City Council had both published full reports that recommended closing their respective property development companies.

But Mid Devon refused, using an exemption under the Freedom of Information Act (FOIA), and maintained its position after Mr Warren asked the council to review its decision.

Shortly after Mr Warren contacted the ICO, the watchdog told the council to reconsider, sating that freedom of information laws were not the correct ones to justify its stance.

The ICO felt the Environmental Information Regulations (EIR) were the appropriate rules, and Mid Devon subsequently provided Mr Warren with a full copy of the terms of reference it had given Francis Clark.

But it used an exemption under the EIR to withhold the full report, claiming commercial confidentiality.

The ICO said the council had breached some regulations of the EIR, including “wrongly initially handling the request under the FOIA”, while also failing to provide the terms of reference in the statutory time limit of 20 working days.

Mid Devon’s argument against releasing the full report to Mr Warren centres on its view that the information is confidential, and disclosure could disadvantage 3 Rivers commercially.

As the firm’s assets are owned by the council, it claims this could also negatively impact taxpayers.

“This information in the public domain could lead to third parties pressuring the company into unfavourable agreements, which could in turn damage the finances of Mid Devon District Council,” the authority told the ICO.

“Considering the document, it is deemed that this would occur and that there is a casual link between the disclosure of the document and the harm that would occur.”

But four tests have to be met for the confidentiality argument to hold.

The ICO said the council had “not provided submissions” to back its claim, and that because minutes of a council meeting make reference to specific recommendations from the report, it “calls into question the soundness of any confidentiality being claimed in this case”.

Nevertheless, the ICO did feel the information in the full report was subject to confidentiality provided by law, but that the authority hadn’t explained fully how and why disclosure of it would have an adverse effect.

“In this case, the council has failed to explicitly demonstrate the causal link between the withheld information and the claimed adverse effects, and failed to properly define the adverse effects,” the ICO ruling said.

“It has also failed to provide any evidence that it has consulted 3 Rivers, whose economic interests it contends would be adversely affected through disclosure.”

Without this explanation, the ICO said it “cannot conclude” that one of the tests had been met, meaning the council’s use of environmental-related regulations to prevent the report being sent to Mr Warren didn’t apply.

The council says it is considering the ICO’s decision and has 28 days to release or appeal.

Bradley Gerrard

LDRS