Key Facts
- •Jessica Learmond-Criqui appealed the Information Commissioner's decision upholding the Department for Business, Energy and Industrial Strategy's (BEIS) refusal to disclose information relating to the government's investment in OneWeb.
- •The request comprised two parts: (1) a report on the financial appraisal of OneWeb by the National Security Strategic Investment Fund (NSSIF), and (2) any reports on the health impacts of electromagnetic radiation from OneWeb's satellites.
- •BEIS relied on FOIA sections 41(1) and 43(2) exemptions (commercial confidentiality).
- •The Commissioner upheld BEIS's reliance on section 43(2), finding the public interest in maintaining the exemption outweighed the public interest in disclosure.
- •The Appellant argued that the public interest favored disclosure due to the significant public funds involved and alleged misleading of the public.
- •The Tribunal considered evidence from various sources, including witness statements and closed sessions.
- •The Tribunal also considered whether the information was already in the public domain because of the US bankruptcy proceedings.
Legal Principles
General right of access to information held by public authorities, subject to exemptions in Part II of FOIA.
Freedom of Information Act 2000 (FOIA)
Information is exempt if disclosure would, or would be likely to, prejudice the commercial interests of any person.
FOIA
Section 43 is a qualified exemption subject to a public interest test: whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
FOIA
The 'would be likely to prejudice' test requires a 'very significant and weighty chance' of prejudice.
R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin)
The public interest balance is assessed at the time of the response to the information request.
Montague v Information Commissioner & Department of International Trade [2022] UKUT 104 (AAC)
Steps for considering whether disclosure would prejudice commercial interests (from Hogan): identify applicable interests; identify the nature of prejudice (real, actual, causal link); decide on the likelihood of prejudice.
Christopher Martin Hogan and Oxford City Council v the Information Commissioner (EA/2005/0026 and 0030)
Outcomes
Appeal dismissed.
The Tribunal found that disclosure of the NSSIF report would likely prejudice the commercial interests of OneWeb, its investors, and the government. The public interest in maintaining confidentiality outweighed the limited public interest in disclosure, particularly given the summary of the report already in the public domain and the importance of maintaining trust in government confidentiality.
Second part of appeal (health impacts) dismissed.
The Tribunal concluded that BEIS likely did not hold relevant reports on the health impacts of satellite radiation, based on the evidence before them.