EA/2023/0448 - [2025] UKFTT 00077 (GRC)

The Commissioner’s response maintains that the Decision Notice was correct. He says that the first two grounds of appeal are misconceived, as any concept of a ‘legitimate interest’ test is not relevant to the application of section 41 FOIA. The issue raised in the fourth ground of appeal – namely whether the supplied terms of reference were, in fact, the ones used by the investigation – is an issue of fact and therefore the Commissioner says that it does not constitute a matter on which the Tribunal have the power to adjudicate.

In relation to the third ground of appeal, the Commissioner says that the exemption under section 41 FOIA is absolute and, whilst he recognises that the duty of confidence may be outweighed by a countervailing public interest in disclosure such that section 41(1)(b) would not apply, the public interest in disclosure in relation to the information that was the subject of the appeal did not outweigh the interest in maintaining the confidence in which the information was provided. Amongst other factors, he had regard to the fact that a commitment had been given to those individuals who had provided information to the investigation that their information would be confidential, that disclosure of the information would make it likely that the identity of individual witnesses in the investigation could be ascertained, and that any breach of confidentiality would seriously harm any future ‘Freedom to Speak Up’ cases.