Council appeals ruling it must release i360 business review

Brighton and Hove City Council is to appeal a ruling that it should publish a full business review of the i360 which it commissioned as part of its decision to help broker a £36m loan to build the viewing tower.

Brighton journalist John Keenan, an enthusiastic user of the Freedom of Information (FOI) Act, has made many attempts to uncover details of the agreement between the council and the i360.

His latest FOI request, for the “complete and unredacted Brighton i360 business review carried out by D&J International Consulting” was made in September last year and rejected the following month on the grounds of confidentiality and prejudice to commercial interests.

Most of the report was published on the council’s website in March 2014, but the sixth and final part was redacted.

Undeterred, Mr Keenan appealed to the Information Commissioner’s Office (ICO) which ruled on 31 March that the information should be disclosed. But the city council has now decided to appeal.

Writing in an article for the Spectator’s City Metric blog today, Mr Keenan said:  “Following my appeal, the Information Commissioner’s Office decided that it had not been shown how disclosure of the information would prejudice the operator’s or the council’s commercial interests.

“The commissioner also noted that it has not been shown that there would be an actionable claim for breach of confidence. It ordered the council to release the full report.

“Now, however, the council has decided it will not accept the ICO ruling. It will instead appeal to the first-tier tribunal, spending thousands of pounds of council taxpayers’ money in the process.

“The views from the top of the observation tower may prove to be impressive – but clear sight of the business case for the i360 remains a distant prospect.”

The council’s arguments against disclosure were that the business plan would be of value to the i360’s competitors, such as the Sea Life Centre, Royal Pavilion or London Eye, and that cost projections could hamper negotiations with third party suppliers, who would know what the i360 was hoping to pay.

It also argued that any prejudice of the i360’s commercial interests were a prejudice of its own, as it was relying on the success of the attraction so that i360 bosses can repay the £36million loan plus £1million interest a year.

But ICO manager Andrew White said that while he accepted the business plan would be of interest to competitors and bidding contractors, it would not prejudice the i360’s commercial interests.

In relation to contractors, he said: “The company has argued that the disclosure of some of the information would prejudice its negotiations with commercial third parties.

“It has stated that providing such parties with a benchmark of its position would make it almost certainly impossible for it to achieve a better negotiation outcome.

“However, the commissioner understands that any process of negotiation will involve benchmarks or starting points which can move either way – this is the nature of negotiation.”

In relation to the issue of confidentiality, Mr White noted that most of the report had already been published with no detrimental effect to the i360, adding: “As it has not been explained why the withheld section of the review attracts a heightened level of protection and the commissioner has discounted the commercial prejudice aspect, the commissioner is assuming that the same conditions apply and that it is, therefore, not plausible that disclosure of the withheld section of the report would result in the described detriment.”

Although the full costs of making the appeal will not be known until it has concluded, in a similar situation the London Legacy Development Corporation spent £21,000 on unsuccessfully appealing an ICO ruling that it should publish details of its deal with West Ham over the Olympic Stadium in full.

A council spokeswoman said: “As a major new commercial enterprise the Brighton i360 is still in the process of negotiating with prospective suppliers and sponsors. Publishing background pricing assumptions for new contractual relationships can prevent a fair negotiation of the most beneficial terms.

“The council is therefore appealing the decision of the Information Commissioner that this information be placed in the public domain.”