Tribunal Upholds Decision to Protect Commercial Interests in FOIA Case

Citation: [2024] UKFTT 77 (GRC)
Judgment on

Introduction

In the First-tier Tribunal case of Jessica Learmond-Criqui v The Information Commissioner & Anor [2024] UKFTT 77 (GRC), the application of certain legal principles and exemptions under the Freedom of Information Act 2000 (FOIA) is rigorously assessed. The appellant, Jessica Learmond-Criqui, challenged the Information Commissioner’s decision to uphold the UK Space Agency’s (UKSA) refusal to release a specific technical report under section 43(2), an exemption concerned with commercial interests. This article examines the key topics discussed in the case, the Tribunal’s reasoning, and the application of legal principles leading to the ultimate decision.

Key Facts

Learmond-Criqui requested from UKSA a copy of an independent technical assessment report prepared by the Aerospace Corporation, concerning the purchase of OneWeb, a satellite communications company. UKSA withheld the report, citing section 43(2) of FOIA, arguing it contained commercially sensitive information with potential to impact commercial interests of OneWeb, its investors, and the Government. The Information Commissioner agreed with the UKSA’s decision to withhold the report, leading to Learmond-Criqui’s appeal to the Tribunal.

Several legal principles under FOIA are critical to this case:

Section 43(2) – Commercial Interests

Section 43(2) exempts information whose disclosure would, or would likely, prejudice the commercial interests of any person, including the public authority holding it. This exemption hinges on the existence of a causative link between potential disclosure and prejudice which must be real, actual, or substantive. The Tribunal evaluated if the disclosure of the Aerospace Corporation’s report would likely cause prejudice to OneWeb and its investors, including detrimental effects on governmental investments.

Public Interest Test

For qualified exemptions like section 43(2), a public interest test is applied. This involves balancing the public interest in disclosure against the interest in maintaining the exemption. The Tribunal considered the public interest factors for and against the disclosure of the report, such as transparency and scrutiny of government investments, alongside the potential for commercial harm and the distortive effect on competition.

Section 41 – Information Provided in Confidence

The Court also examined whether the report qualified for section 41 protection, which concerns information provided in confidence. While the Tribunal did not need to conclusively apply section 41 due to its findings under section 43(2), the information’s confidentiality was a factor in the public interest balance regarding the commercial interests exemption.

The assessment under section 41 would have required an analysis of whether information has the necessary quality of confidence, if it was imparted inferring a duty of confidentiality, and if unauthorized disclosure could cause detriment.

Jurisdiction of the Tribunal

The Tribunal acknowledged its limited jurisdiction, noting that it could only assess the decision related to the request for the technical report, not any subsequent requests or concerns about health impact reports as no decision notice had been served on those issues.

Outcomes

After a detailed analysis and consideration of the evidence, the Tribunal concluded that:

  • There was a real and significant risk that disclosure of the independent technical report would likely prejudice OneWeb’s commercial interests, those of its investors, and the Government.
  • The public interest in maintaining the exemption outweighed the interest in disclosure. Transparency in how public funds are used is essential; however, the potential commercial harm to OneWeb and its investors was given greater weight.
  • The information possessed the necessary quality of confidence, suggesting further weight towards maintaining the exemption, although a definitive ruling under section 41 was not required.
  • The Tribunal confirmed that it did not have jurisdiction to consider any appeal in relation to the health impact report part of the earlier 2020 request.

Conclusion

In Jessica Learmond-Criqui v The Information Commissioner & Anor, the Tribunal’s application of FOIA’s legal principles underscores the complexity involved in balancing public interest against the protection of commercial interests. The case serves as an insightful exposition of how section 43(2)‘s exemption operates in practice, particularly in contexts involving significant public investments and the confidentiality of expert technical assessments. The decision upholds the nuanced approach required under FOIA, where the transparency benefits are carefully weighed against potential commercial harms.

Related Summaries