Edinburgh Tram Inquiry: Court rejects construction company’s challenge to release of ‘commercially sensitive’ reports

Lord Tyre
Lord Tyre
A construction company involved in the Edinburgh Tram Inquiry which challenged a decision by the inquiry chairman ordering it to release “commercially sensitive” documents has failed in a legal bid to prevent disclosure of the information.
Bilfinger Construction had sought a restriction order preventing publication of information contained in certain reports, but the chairman of the inquiry Lord Hardie ruled that there was a “strong public interest” in their full release - a decision upheld by a judge in the Court of Session.
Restriction order
Lord Tyre heard that petitioner, a core participant in the Edinburgh Tram Inquiry, challenged a notice dated 6 February 2018 which was issued by the respondent chairman of the inquiry in accordance with section 21(2) of the Inquiries Act 2005, requiring the petitioner to produce certain documents to the inquiry, namely monthly reports written between October 2007 and the date of completion of the tram project in 2013.
The documents, which were mentioned by a former employee of the petitioner who was its project director between 2009 and 2014, while giving oral evidence to the inquiry in December 2017, were duly produced, but the petitioner made an application under section 19 of the 2005 Act requesting a restriction order to redact what was said to be “highly sensitive confidential information” in the reports.
The petitioner’s objection to publication of the information had two general strands: firstly, that the information contained in the reports was commercially sensitive, and, secondly, that the format and structure of the reports was a proprietary tool developed by the Bilfinger Group which itself constituted a “trade secret”.
For these reasons, it was contended, disclosure or publication of the commercially sensitive information in the reports would create “a very real risk of significant harm and damage” to the Bilfinger Group if the restrictions were not granted.
However, By letter dated 25 April 2018 the respondent issued a decision refusing the petitioner’s request and confirming that the documents would be published unredacted on the inquiry website. 
He considered that the monthly reports were “relevant” to the inquiry’s terms of reference in a number of respects and that there was a “strong public interest” in their release as contributing to understanding the reasons for the conclusions that the inquiry might reach.
‘Unreasonable decision’
The petitioner then lodged an application to the Court of Session seeking (i) suspension of that decision, and (ii) interdict against the respondent or anyone acting on his behalf in connection with the inquiry or otherwise from publishing or disclosing the confidential information in the documents. 
On behalf of the petitioner it was submitted that the interim orders sought should be pronounced as the company had made out a “prima facie” case that the respondent’s decision to refuse to make a restriction order was one that no decision maker could reasonably have made.
It was argued that the decision had “no proper evidential basis”; failed to take into account relevant material; was “irrational”; and was “procedurally unfair and unreasonable”.
The petitioner’s arguments were presented both at common law and under Article 1 of the First Protocol to the European Convention on Human Rights (A1P1).
But on behalf of the respondent it was submitted that the petitioner had failed, in its application, to provide an explanation sufficient to overcome the “statutory presumption in favour of publication”. 
The application proceeded on the basis of “bare assertion” without the necessary explanations of what information might be used by competitors or how this might harm the petitioner or other members of the group.
With regard to the petitioner’s arguments at common law, the use made of the information provided was irrelevant provided - as was the case - the respondent had been satisfied that it was relevant to the inquiry.
The protection afforded by A1P1 to possessions was not absolute and here the public interest in disclosure was weighed against the interference with enjoyment, and the requirements of A1P1 were “satisfied”.
‘Prima facie case’
Refusing the petitioner’s application, the judge held that the company had failed to state a prima facie case.
In a written opinion, Lord Tyre said: “The first question that I have to address is whether the petitioner has made out a prima facie case that the respondent’s decision to refuse the restriction order sought was irrational and unreasonable, and/or that it had no proper evidential basis, and/or that it failed to take into account relevant material, and/or that it was procedurally unfair. I am mindful that if I hold that no prima facie case has been made out, and publication follows, refusal of the interim orders sought will have effectively determined the outcome of the petition against the petitioner. I am, nevertheless, satisfied that I should refuse the petitioner’s motion on the ground that no prima facie case has been demonstrated.
“For the petition to succeed, the court would require to be satisfied not only that the respondent’s decision was wrong but that it was one that no chairman could reasonably have reached on the basis of the material presented to him. In my opinion, no such prima facie case has been made out…I have already noted that section 18 of the Act, read short, imposes a duty on the chairman of an inquiry to take such steps as he considers reasonable to secure that members of the public are able to view documents provided to the inquiry. That duty is subject to section 19, but a restriction on publication may only be imposed by the chairman in a restriction order if he considers it to be necessary in the public interest, having regard inter alia to the risk of harm or damage caused by disclosure of commercially sensitive information. 
“It is obvious that before the chairman can make a decision as to whether a restriction order is necessary for this reason, he must first be satisfied that the information whose publication is sought to be prevented is indeed commercially sensitive. In the present case, the respondent was not satisfied that the redactions sought by the petitioner contained commercially sensitive information in either of the respects asserted. He took the view that it was not obvious that either the substantive content of the reports or the manner of its presentation was commercially sensitive, and that no adequate explanation had been given of why or to whom the information was commercially sensitive or of the type of harm or damage that might be suffered following publication of it. In my opinion, the petitioner has failed to state a prima facie case that no chairman could reasonably have taken that view.”

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