Home > Cases > Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council & Ors [2010] EWCA Civ 1214

The first interested party was a local elector in the area of the defendant local authority. He applied to inspect and make copies of documents which related to a waste management PFI contract between the claimant waste management company and the authority and invoices submitted pursuant to that contract.

The claimant applied for judicial review seeking to the challenge the authority’s making available certain documents to the public. The claimant objected on the ground of the confidential information contained in them, but consented to the disclosure of such documents or parts of them as were already in the public domain with its consent to freedom of information requests in the past. The issue arose as to whether the contract or the invoices were documents within s 15(1) of the Audit Commission Act 1998, and therefore open to inspection, could be protected against disclosure.

The claimant submitted that neither the contract nor the invoices as documents fell within the statutory words ‘contracts…bills, vouchers …relating to them’, ie relating to the ‘accounts to be audited’. The claimant accepted that the documents were contracts, bills and/or vouchers, but submitted that the documents did not relate to the accounts to be audited because: (i) the accounts in questions were not accounts to be found in the authority’s general books of accounts, but rather the high level summarized accounts to be found in the authority’s annual statement of accounts; and (ii) the documents in question were not referred to in those high level summarised accounts, and the words ‘relating to’ required some such express reference. The judge rejected those submissions and held that the contract and invoices came within s 15. The claimant appealed.

The claimant submitted that the ‘accounts to be audited’ were the high level summaries contained in the authority’s statement of accounts, and the contract and invoices sought to be inspected did not relate to those summaries because neither the documents not the accounts referred to each other. It contended that the words ‘relating to’ should bear a narrow meaning in order to assist to protect confidential information. The claimant submitted, inter alia, a new alternative ground of appeal, namely that s 15(1) had to be read down in order to preserve the confidentiality of confidential information by reason of the provisions of art 8, and/or art 1 of the First Protocol, of the European Convention of Human Rights.

Held:
(1) Both ‘accounts to be audited’ and ‘relating to’ should be given a broad meaning: the former referring to and/or embracing the underlying record of financial movements kept as a running record but made up for each financial year, and the latter requiring only a factual connection between the accounts and the documents in question, and not an express reference or mention (see [85]-[103] of the judgment).
(2) Article 1 of the First Protocol to the Convention would, in the circumstances of the case, provide sufficient reason for needing to read down s 15(1) so as to make an exception for confidential information, subject to the question of justification (see [141], [162] and [166] of the judgment).

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