FT/EA/2024/0195 - [2025] UKFTT 01263 (GRC)

Ofgem has statutory duties under various legislation including the Gas Act 1986 Act, the Electricity Act 1989 and UA 2000.

On 31 January 2023, The Times provided evidence to Ofgem relating to British Gas’ use of pre-payment meters in the homes of its vulnerable customers.

On 1 February 2023, The Times published allegations into British Gas’ conduct of imposing forced prepayment meter installations on vulnerable customers. Ofgem opened an investigation into British Gas on 2 February 2023. It formally published the terms of reference of its investigation into British Gas Trading Ltd’s compliance with its licence conditions on 21 February 2023.

The information derived from The Times was the key piece of information that led Ofgem to make a provisional order on 2 February 2023 against British Gas on the basis that it appeared to Ofgem that British Gas was or was likely to contravene its Standard Licence Conditions. The provisional order was made under powers within the 1986 Act and 1989 Act. It is available on Ofgem’s website.

The first request (the October Request) was made to Ofgem on 8 October 2023. Ofgem responded to the request on 3 November 2023.

The second request (the November Request) was made to Ofgem on 17 November 2023. Ofgem responded to the request on 14 December 2023.

The approach that the Tribunal has taken is to start with the absolute exemptions. If we have found that an absolute exemption applies, we have not gone on to consider other exemptions claimed, it being unnecessary to do so. Of course, where absolute exemptions have been found not to apply, we have proceeded to consider the other exemptions. Where we have identified that an exemption applies to information within an email chain, we have treated all the information as covered by that exemption. We have not attempted to separate out parts of the information as any potentially disclosable information was minimal and would be meaningless without the context of the withheld information.

Section 44(1)(a) FOIA provides that information is exempt information if its disclosure is prohibited by any enactment. In this case, if disclosure of information is not prohibited by section 105(1) UA, then condition (a) above is not satisfied, and the information is not exempt information under section 44(1)(a).

In deciding that Ofgem was entitled to rely upon section 44(1)(a), the Commissioner cited Ofcom v Gerry Morrissey and the Information Commissioner [2011] UKUT 116 AC to the effect that neither the Commissioner nor the Tribunal has jurisdiction to determine whether the public authority acted reasonably.

The Commissioner further quoted its guidance on prohibitions on disclosure under section 44 that:

“Where a public authority has discretion about applying a gateway to disclosure, the Commissioner will not question or examine the reasonableness of the authority’s decision. If the authority has decided that information should not be disclosed under a gateway, the Commissioner will only verify that the authority has made that decision, and not consider whether its decision was reasonable. So, if there is a statutory prohibition on disclosure and the authority has decided that it is not disapplied by a gateway, then the Commissioner will accept that section 44(1)(a) applies.”

As set out in Morrissey:

“54.

The language of s 2(2)(a) confirms that it must be for the public authority initially to determine whether the information requested is exempt “by virtue of” s 44. This in turn means that it is for the public authority to consider whether, in the light of the specific nature of the request made, and of the particular nature of the information sought to be disclosed, the applicability of some other statutory enactment results in the prohibition encapsulated in s 44. It will then be for the Commissioner to verify whether or not the public authority has dealt with the matter in accordance with the requirements of Part I of FOIA.”

“58.

The Commissioner’s statutory remit, in accordance with ss 18 and 50 of FOIA, is to decide whether a public authority has failed to deal with a request in accordance with the requirements of Part I of FOIA. It follows that the Commissioner is then charged with the responsibility of verifying whether the exercise required by FOIA has been correctly conducted by the public authority in question. The exercise which the Commissioner conducted was, insofar as it examined the reasonableness of OFCOM's failure to conclude that disclosure should be made under s 393(2), not in our view an exercise required by FOIA in the circumstances of the present case. As s 44 confers an absolute exemption, the role of the Commissioner, and thereafter that of the tribunal if appropriate, is limited to a verification process.  There is, of course, a question of statutory construction as to what it is that FOIA contemplates will be involved in the verification process. Once that is resolved it is not the role of the Commissioner to stray beyond that remit.”

It was initially for Ofgem to determine whether the information requested is exempt by virtue of section 44. The Tribunal’s powers are restricted by reference to those of the Commissioner, which are limited to a verification exercise. This was summarised at paragraph 63 of Morrissey as:

“In short, the task of the Commissioner is to make a decision whether, in any specified respect, a request for information made by a complainant to a public authority has been dealt with in accordance with the requirements of Part I of FOIA.  That may well require a view to be taken on the construction of a potentially relevant statutory bar on disclosure in other legislation. In the circumstances of the present case it did not extend to asking the questions which might be asked on the subject of reasonableness by a court of supervisory jurisdiction examining a challenge to OFCOM's failure to exercise powers available to it under the 2003 Act.”

Following the above approach and whether Ofgem dealt with the request “in accordance with the Requirements of Part I”, the question for the Commissioner and for the Tribunal is whether disclosure is prohibited under section 105 UA 2000.

Ofgem maintains that the information was obtained either under Schedule 1(11)(1) of the UA 2000 by reference to its enforcement functions under the 1986 Act and the 1989 Act or directly under those Acts by reference to Ofgem’s enforcement functions. It is further maintained that the information relates to the affairs of a particular business, being The Times and British Gas. As such, it is argued that the information is subject to the general restriction on disclosure within section 105 UA 2000.

The Tribunal’s attention is drawn by Ofgem to the Employment Appeal Tribunal decision in Office of Gas and Markets v Pytel [2019] ICR 715. At paragraphs [77-78] section 105(1) is described as creating “a very widely worded prohibition” that provides “a carefully crafted scheme of exceptions from the prohibition”.

Not all information obtained by Ofgem is prohibited from disclosure under the UA 2000. Ofgem states that it considered if any of the disclosure gateways in section 105 apply but concluded that they do not. In any event, Ofgem’s position is that the gateways provide a power to disclose but not a duty. Even so, the Tribunal has started by looking at whether section 105 UA 2000 could apply to the information claimed as exempt. It should not be assumed that section 105 automatically applies to all the communications. Section 105 is framed in terms of information “obtained” with reference to its functions under the named Acts.

The Tribunal is satisfied that newly identified document 17 for the November Request falls within the statutory prohibition of section 105 of UA 2000 for section 44 FOIA to be engaged. In terms of the October Request, section 44 applies to documents 26 to 29 (inclusive), 33, 37 to 41 (inclusive) and 42.8 to 42.11 (inclusive), falling within Ofgem’s enforcement functions that are prohibited from disclosure by UA 2000. Although section 44 was not listed against document 42.8 in the table of withheld documents, this was clearly in error as section 44 was claimed on the document itself.

It strikes the Tribunal that Ofgem has taken a broadbrush approach. It cannot have fully considered whether the information within each of the remaining documents was exempt under section 2(2)(a) FOIA by virtue of section 44(1)(a)). Whilst UA 2000 is drafted widely, it does not encapsulate any/all communications that Ofgem may have. The Tribunal concludes that Ofgem has not dealt with the Requests in respect of the remaining documents in accordance with Part 1 FOIA. Other than those documents listed above, section 44 is not engaged.