Tribunal Upholds Royal Mint's Commercial Interest Exemption under FOIA

Citation: [2024] UKFTT 73 (GRC)
Judgment on

Introduction

The case of The Royal Mint Limited v Information Commissioner & Anor ([2024] UKFTT 73 (GRC)) delves into the application of Section 43(2) of the Freedom of Information Act 2000 (FOIA), which concerns the exemption related to commercial interests. The decision from the First-tier Tribunal (General Regulatory Chamber) sheds light on the nuanced determination of when commercial interest exemption applies, including the assessment of public interest balance.

Key Facts

The Royal Mint Limited (RM) was asked to disclose the mintage figures for one ounce gold, silver, and platinum “Britannia” coins from 2013 to 2021 by Mr. Clarke, which RM refused to provide, citing Section 43 of the FOIA. The Information Commissioner subsequently decided that Section 43(2) was not engaged and required RM to disclose the information. RM appealed against this decision, leading to the case under analysis.

The legal principles and concepts applied in this case include the following:

  1. General Right of Access to Information (Section 1(1)(b) FOIA): Establishes the right to access information held by public authorities upon request.

  2. Commercial Interest Exemption (Section 43(2) FOIA): Information exempt if its disclosure would likely prejudice the commercial interests of any entity, including the public authority holding it. This exemption is qualified, not absolute, meaning it is subject to a public interest test.

  3. Public Interest Test (Section 2(2)(b) FOIA): The exemption does not apply if the public interest in disclosing the information outweighs the interest in maintaining the exemption.

  4. Prejudice Test & Threshold (As per Hogan v Information Commissioner): The decision-maker must identify the nature of the prejudice and demonstrate a causal link between disclosure and potential prejudice that is “real, actual or of substance”, with a threshold beyond the merely hypothetical or remote possibility.

  5. Likelihood of Occurrence of Prejudice (John Connor Press Associates Limited v Information Commissioner): The phrase “likely to prejudice” means there must be a real and significant risk of prejudice, and two limbs of engagement apply based on the chances of prejudice being more probable than not or there being a real and significant risk.

The Tribunal assessed the RM’s concerns related to the sourcing of coin blanks and the potential impact on its commercial interests, finding previous decisions lacking in considering the volatility of the bullion market and the closed competitive landscape for blank suppliers, which RM does not produce itself.

Outcomes

The Tribunal allowed RM’s appeal, determining that:

  1. Commercial Interest Exemption was Engaged:
    • Disclosure of the information involved a real and significant risk of prejudice to RM’s commercial interests.
    • Prejudice pertained to increased pricing pressure from blank suppliers and competitors accessing supplier capacity, to RM’s detriment.
  2. Public Interest in Non-disclosure:
    • There was no pressing public need for disclosure of the mintage figures.
    • The lack of strong public interest factors favoring disclosure and potential fractious relations with blank suppliers justified the exemption.

A substituted decision notice was made to effect that RM is entitled to rely on the exemption in Section 43(2) FOIA not to disclose the requested information.

Conclusion

In The Royal Mint Limited v Information Commissioner & Anor, by considering the specifics of the competitive bullion market and RM’s reliance on a select group of blank suppliers, the Tribunal engaged the commercial interest exemption under Section 43(2) of the FOIA. The decision contrasts with the Commissioner’s earlier finding by highlighting the real and substantial risks associated with disclosure and the necessity to balance these risks with the public interest. The case underscores that exemptions to disclosure under the FOIA require careful examination, not just of the nature of the information withheld but also the market dynamics and the entity’s role within it.

Related Summaries