Appeal Number: EA/2005/0005, FS50063478
|Heard at Procession House, London On 16 December 2005 Prepared||Decision Promulgated 25th January 2006|
We have decided to allow the appeal. As the information in issue has now been disclosed to the Appellant we make no further direction or order.
(a) Section 1 of the Act, as it applies to the facts of this case, has the effect that a person making a request for information to a public authority, such as NMM, is entitled to have that information communicated to him or her unless the information falls within the definition of one or more categories of exempt information.
(b) Section 43(2) defines one of those categories as information the disclosure of which "would, or would be likely to, prejudice the commercial interest of any person (including the public authority holding it)".
(c) The effect of Section 2(3) is that Section 43(2) provides a qualified, not an absolute, exemption. This means that, even if it is established that the information in question falls within the definition, the obligation to disclose will still arise unless, as stated in section 2(1)(b), "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information".
(a) The contribution that the Museum contracted to make, and subsequently did make, towards the cost of the production of the work;
(b) The valuation placed on each of the works;
(c) Estimates of the costs expected to be involved in producing and exhibiting the work;
(d) Sums that were sought from, or contributed by, other sponsoring bodies.
(a) NMM's financial support took the form of a contribution to the costs of the materials required to produce and exhibit the artwork;
(b) the total contribution had been provided in part by The Elephant Trust and the Arts Council England;
(c) copyright in the artwork would be retained by Conrad Shawcross;
(d) the contribution was to be refunded if the artwork was sold within three years of the end of the exhibition;
(e) NMM accepted the risk of loss or damage of the artwork during the exhibition and in transit.
"The Commissioner recognises the public interest in financial transparency and accountability where public authorities commission new works of art, particularly where that is not their core activity. The commissioning of works of art is not the core activity of NMM. The disclosure of the requested information may also inform the debate about museum funding in that it relates to the choices a free-to-access, publicly subsidised museum has made to attract greater visitor numbers and generate revenue in competition with other attractions (including non-subsidised attractions).
"However, the Commissioner understands that at the time the request was made (January 2005), the NMM was involved in active negotiations with another artist for their New Visions programme. The Commissioner recognises that premature release of the financial arrangement between NMM and Conrad Shawcross would be likely to prejudice the NMM's bargaining position in respect of these active negotiations for a similar project to the extent that the public interest in maintaining the exemption outweighs the public interest in releasing the information. The Commissioner gave particular weight to the fact that NMM were dealing with public funds and needed to ensure value for public money.
"The Commissioner also considers that the likelihood of prejudice will diminish with time and with the conclusion of the active negotiations to the point where any prejudice to the NMM's commercial interest would no longer outweigh the public interest in releasing the information that [JCPA] requested."
Later he concluded:
"The Commissioner has decided that the public interest in protecting NMM's bargaining position during active and contemporaneous negotiations for a project of a similar nature overrides, for the time being, the public interest in making public the financial details of the negotiations which immediately preceded those active negotiations."
(1) If on an appeal…the Tribunal considers -
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could
have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based."
No question arises in this appeal on the exercise of discretion by the Commissioner and we have therefore to decide, quite simply, whether the Decision Notice is "in accordance with the law". The relevant law for this purpose is to be found in the statutory provisions summarised in paragraph 3 above. In particular, for the purposes of the first ground of appeal, we have to decide whether the Commissioner's conclusion that the financial information in question should have been treated as exempt at the time is or is not "in accordance with" section 43(2) of the Act. In reaching our decision on that point we have the power to review any finding of fact on which the Decision Notice was based.
(a) The information that NMM had already disclosed would have provided any artist entering into negotiations with NMM with a lot of information (as summarised in paragraph 5 above) that would be valuable to him or her;
(b) The fact that it had already been disclosed that the contract with Conrad Shawcross provided for a contribution to the cost of materials, as opposed, for example, to a flat fee, reduces very materially the value of the financial information that was withheld;
(c) The nature of the works created by Conrad Shawcross and Beth Derbyshire were so different that they could not be treated as true comparables, for the purpose of negotiation, particularly in view of the level of disclosure referred to in (a) above - we were not convinced that the similarities relied upon by Ms Hogan (see paragraph 14 above) were especially relevant in this respect; and
Date: 24 January 2006
Chris Ryan Deputy Chairman