Dear Mr Hutchinson

Thank you for your request for information dated 8 November 2018 in which
you asked for “correspondence between the Nicklaus organisation, its
employees, directors and subsidiary companies that Council may hold with
regards to the proposed golf resort at Hoylake.”

Wirral Council considers that the information you have requested is
environmental information under the Environmental Information Regulations
2004 (“EIR”). Regulation 2 (1) (c) of the EIR provides that measures
(including administrative measures) such as policies, legislation, plans,
programmes, environmental agreements, and activities affecting or likely
to affect the elements is environmental information. Plans and activities
in connection with the Hoylake golf resort are likely to affect the
element of land and fall within the definition of environmental
information.

The Council has a duty to make environmental information available on
request unless one or more of the exceptions in the Regulations apply.
Having considered your request we believe that the exception contained in
Regulation 12 (5)(e) of the EIR applies to your enquiry. Regulation 12
(5)(e) provides that a public authority may refuse to disclose information
to the extent that its disclosure would adversely affect the
confidentiality of commercial or industrial information, where such
confidentiality is provided by law to protect a legitimate economic
interest.

We have considered the guidance issued by the Information Commissioner’s
Office: “Confidentiality of commercial or industrial information
(regulation 12 (5)) : Version:1.2” and are satisfied that the requested
information has the necessary quality of confidence. The information is
not trivial and it is not in the public domain. Paragraph 38 of the ICO
guidance states :- “Legitimate economic interests could relate to
retaining or improving market position, ensuring that competitors do not
gain access to commercially valuable information, protecting a commercial
bargaining position in the context of existing or future negotiations,
avoiding commercially significant reputational damage, or avoiding
disclosures which would otherwise result in a loss of revenue or income.”
Further, paragraph 46 of the guidance provides that “..…if it is a third
party’s interests that are at stake, the public authority should consult
with third party unless it has prior knowledge of their views”. The
Council has previously consulted with the relevant third party who has
indicated that correspondence should not be disclosed on the basis that it
contains confidential and commercially sensitive information which needs
to be protected in existing ongoing negotiations. Disclosure of the
requested information would adversely affect the legitimate economic
interest of both the Nicklaus organisation and the Council’s own
legitimate economic interest in respect of the existing negotiations.

The case of Elmbridge Borough Council v. Information Commissioner 
(EA/2010/0106, 4 January 2011) found that disclosure of the confidential
information would have to adversely affect a legitimate interest of the
person the confidentiality is designed to protect. The implementation
guide for the Aarhus Convention gives the following guidance on legitimate
economic interest (Paragraph 36 of the ICO guidance.) “Determine harm.
Legitimate economic interest also implies that the exception may be
invoked only if disclosure would significantly damage the interest in
question and assist its competitors”. The Council considers that
disclosing the requested information would significantly damage the
interest in question and assist the competitors of Nicklaus Joint Venture
Group Limited.

The exception contained in Regulation 12 (5) (e) of the EIR is subject to
the public interest test.

Factors in favour of disclosing the requested information

o The public interest in disclosure to promote transparency and
accountability of public authorities
o That public money is being used effectively

o Factors in favour of maintaining the exception
o there is an inherent public interest in maintaining commercial
confidence
o that disclosure would cause harm to the legitimate economic interests
of the third party and the Council.
o other organisations may be reluctant to bid for or enter into
arrangements with the Council if doing so means that confidential and
commercially sensitive information will be disclosed to the public
where disclosure would adversely affect the legitimate economic
interests of those organisations

The Council is satisfied that the public interest in maintaining the
exception outweighs the public interest in disclosure of the requested
information.

Your request for information is therefore refused under Regulation 14 of
the EIR, relying on the exception contained in Regulation 12 (5)(e) of the
EIR. You have the right to make representations under Regulation 11 of
the 2004 Regulations, which should be sent to
[1][Wirral Borough Council request email]  and your request will be allocated
for review.

If you are dissatisfied with our subsequent response to your request for a
review, you also have the right to complain to the Information
Commissioner. The Information Commissioner can be contacted at
[2]https://ico.org.uk/global/contact-us/

Yours sincerely

Lynette Paterson

Principal Information Management Officer

Business Management

Treasury Building

Argyle Street
Birkenhead
Wirral
CH41 1AH

[3]Tel: 0151 691 8201

[4][Wirral Borough Council request email]

[5]LGC Awards15_Winner_MIP

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References

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