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

The Appellant submitted appeals against two decisions of the Information Commissioner (“the Commissioner”). Both appeals concern the same request for information from the Second Respondent (“Ofgem”), but for different months. The requests were made to Ofgem under the Freedom of Information Act 2000 (“FOIA”).

The Commissioner relied upon the same reasons in both decision notices. A single combined open bundle for both appeals has been submitted, as well as a single closed bundle. Following case management directions of 2 August 2024, the appeals have been heard together. As there are separate decision notices, the appeals have not been consolidated under a single case number. Nevertheless, the appeals are linked and so this decision addresses both appeals.

The appeal under Case no. FT/EA/2024/0195 is against a decision of the Commissioner dated 15 May 2024 referenced IC-281994-M0Y0 (“the First Decision Notice”).

The appeal under Case no. FT/EA/2024/0233 is against a decision of the Commissioner dated 10 June 2024 referenced IC-274273-P0V2 (“the Second Decision Notice”).

The parties opted for a determination of the appeal on the papers. Following the receipt of revised bundles (see below), the Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“2009 Rules”).

The Tribunal panel convened on 23 June 2025 to make the paper determination. The documentary evidence before the Tribunal comprised an open and closed bundle and closed submissions. The closed bundle contained the withheld information. It emerged that the closed bundle was lacking in clarity in material respects necessitating the Tribunal to issue further case management directions on 23 June 2025. Therefore, the case was adjourned part-heard pending the receipt of further information.

In particular, the Tribunal noted that Ofgem had suggested that two other exemptions under FOIA applied besides sections 31, 40 and 44 on which no submissions had been made. There was disparity between the index in the closed bundle and the Table annexed to the witness statement of Robert Alexander. This made it difficult to establish which exemptions were claimed to apply to the content of each withheld document. No gist of the closed bundle had been provided to the Appellant, which appeared as though it might be incomplete in any event. In addition, it appeared to the Tribunal that Ofgem may not have fully reviewed whether some information could be released with redactions if necessary.

In response, an updated closed bundle was provided plus a supplemental witness statement from Mr Alexander with open redacted version. Ofgem did not consider that any material could be moved into the open bundle. However, it reissued a revised version of the open witness statement of Mr Alexander with fewer redactions. Ofgem removed some information from the closed bundle that was out of range of the Requests. It added other information identified as being within scope, which had not been before the Commissioner. A gist of the closed bundle was supplied to the other parties along with open written submissions from Counsel for Ofgem (dated 16 June 2025, revised 14 July 2025).

Ofgem confirmed that aside from sections 31, 44 and 40(2) of FOIA, it additionally seeks to rely upon sections 41 and 43(2) FOIA. Its reliance on section 21 FOIA had already been withdrawn. Neither section 41 nor section 43(2) were argued at the time of the Commissioner’s decisions.

The Appellant and Commissioner were afforded opportunity to comment on all open revised or new material, including additional exemptions relied upon, and the gist. The Appellant provided written submissions in reply on 15 July 2025. The Commissioner did not respond.

The original and revised closed bundles for both appeals are held under Rule 14(6) in accordance with the Tribunal’s directions made on 19 May 2025 and 17 July 2025. Updated Annex 1 to the further open witness statement of Robert Alexander contains the table of withheld documents with only the description of the documents redacted. References hereafter to document numbers are to the numbered exhibits of RDA2 within the first column of that table. There is one exception; document 6 included an undated page (at CB page RDA2/030) that is unconnected to other pages within that document. The Tribunal refers to this page as document 6A.

The Tribunal panel resumed its considerations on 11 September 2025 in light of the revised and supplementary documentation.

It is sufficient for the Tribunal to provide all our reasons for our decisions in a single, open decision. A confidential Closed Annex has been provided to identify the names of persons to be redacted from the information to be released and aspects of our reasoning which refer to closed material. If no appeal is made against our decision, or if any appeal is unsuccessful, then paragraphs 5-11 of that reasoning need not remain confidential.

On 17 November 2023, the Appellant sent to Ofgem a request (“the November Request”) for the following information:

“Please can I have a copy of all correspondence you have exchanged with the Times newspaper in February 2023? This should include any notes you have made of verbal conversations.

You will be aware I have previously requested this information. I am requesting it again on the advice of the ICO.”

The Decision Notice of 15 May 2024 records that the context for the request, as provided by Ofgem, was that: “In February 2023, The Times newspaper 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, and formally published the terms of reference of its investigation into British Gas Trading Ltd’s compliance with its licence conditions on 21 February 2023.”

On 8 October 2023, the Appellant sent a request (“the October Request”) to Ofgem as below:

“Please can I have a copy of all correspondence you have exchanged with the Times newspaper in March 2023? This should include any notes you have made of verbal conversations.”

Refusal of the Requests

Ofgem responded on 3 November 2023 to the October Request disclosing some redacted emails and citing sections 31(1)(g) with 31(2), 40(2) and 44(1)(a) FOIA as its basis for refusing to provide the remaining information. That decision was upheld by Ofgem upon an internal review communicated by letter of 4 December 2023.

On 14 December 2023, Ofgem provided some information to the Appellant to the November Request and refused the remainder on the basis that the information was exempt from disclosure under sections 21, 31, 40 and 44 of FOIA. Ofgem subsequently withdrew reliance upon section 21 and the Commissioner’s investigation focussed on sections 31, 40 and 44 of FOIA.

Following the Appellant’s request of 16 December 2023, Ofgem conducted an internal review on 17 January 2024 and maintained its position.

The Appellant’s complaints to the Commissioner were made on 4 December 2023 and 13 January 2024 concerning the October and November Requests, respectively.

For the same reasons in both Decision Notices, the Commissioner decided that Ofgem correctly cited section 31(1)(g) with subsection 31(2)(c) of FOIA to refuse to disclose the withheld information and that the public interest favoured maintaining the exemption. He has also decided that section 44(1)(a) FOIA was correctly cited. Whilst not mentioned in the decision for the Second Decision Notice, the Commissioner additionally found in the First Decision Notice that Ofgem correctly relied upon section 40(2). The Commissioner did not require any further steps in either case.

In reaching those decisions the Commissioner:

Was satisfied that the exemption at section 31(1)(g) provides grounds for refusing to disclose the withheld information as to do so would be likely to prejudice Ofgem’s functions when it is investigating whether it should take action under its regulatory powers under the Gas Act 1986 or the Electricity Act 1989.

Having gone on to consider whether the public interest lies in disclosure, the Commissioner decided that Ofgem’s arguments in favour of withholding the information were more persuasive.

Ofgem was entitled to rely on section 44(1)(a) of FOIA to withhold the requested information. Section 105(1) of the Utilities Act 2000 prohibits Ofgem from disclosing it, and there is no lawful gateway to disclosure.

There is no Article 6 basis for processing and so the disclosure of the information would not be lawful. Ofgem is entitled to withhold the information under section 40(2), by way of section 40(3A)(a).