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

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.

The Lord Ordinary refused the petitioners’ motion for interim suspension of the decision and interim interdict from publishing the reports - a decision which has now been upheld by the Inner House of the Court of Session.

Restriction order

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Malcolm, heard that the petitioners, 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.

‘Irrational decision’

The petitioners then lodged an application to the Court of Session seeking suspension of that decision, and 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, but the Lord Ordinary ruled that the company failed to demonstrate a “prima facie” case, having failed to show that the reports contained information which, if revealed to the public, would cause loss and damage.

The petitioners challenged that decision, advancing three grounds of appeal.

It was submitted that the decision was “contrary to the statutory duty of fairness” as the application ought to have been given “fair and equal treatment” comparable to that given to a “substantively similar” application by Siemens, another inquiry participant, which had previously been granted.

It was argued that the Lord Ordinary’s decision was based on a misunderstanding that the Siemens application concerned the same type of internal financial information and the same risk of harm ought to have been taken pro veritate, thus they should have been determined in the same way.

It was also submitted that the decision violated the petitioners’ rights under Article 1 of Protocol 1 of the European Convention on Human Rights (A1P1), as it amounted to a “disproportionate and unlawful interference” with the petitioners’ possessions.

Further, it was argued that the decision “irrational”, as it failed to take proper account of relevant material, failed to provide specific reasons for rejecting this evidence, and took account of considerations for which there was “no evidential basis”.

No error of law

Delivering the opinion of the court, the Lord President said: “The court is concerned to determine the legality of the respondent’s decision rather than to explore its merits. Subject to rationality, the respondent was entitled to determine, as a matter of fact and on the material provided to it, that the petitioners had failed to demonstrate that the material in the reports was ‘commercially sensitive information’ in terms of section 19 of the Inquires Act 2005.

“The petitioners are correct to submit that, as a generality, at the stage of asking for interim orders, the court will often proceed on the basis that the petitioners’ averments are true. They may, in the absence of contradictory material, have to be read pro veritate. However, mere relevancy is not the test. The averments have to be sufficiently specific and weighty to engage a prima facie case; here that the Siemens’ material was of an identical, or very similar, nature and that its commercial sensitivity arose in similar circumstances.

“The petitioners have not set out such a case. Their averments are vague. Their submissions did not advance matters; references being made to the Siemens’ application involving ‘commercially sensitive pricing information’ or similar phrases. Although Siemens were part of the same consortium, they were engaged on a different part of the works. They may still be engaged in very similar works elsewhere. They may have been able to persuade the respondent that there was a clear danger of loss and damage, if the information were released to the public. There may, in short, be a myriad of reasons for treating the two applications differently. For these reasons, the first ground of appeal fails.”

The judges also agreed with the Lord Ordinary that there was “no error” in the respondent’s reasoning for rejecting the A1P1 argument and that the petitioners’ had failed to set out a prima facie case the the information was commercially sensitive.

The rationality challenge also failed, after the court ruled that the respondent had taken account of all the material before him in reaching his decision.