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

Is there an unauthorised use to the detriment of the party communicating it?

Information possesses the ‘necessary quality of confidence’ if it is more than trivial, is not otherwise accessible and is worthy of protection in the sense that someone has a genuine interest in the contents remaining confidential. The Tribunal is satisfied that documents 6A, 7, 8, 19 and document 35 meet this threshold. They concern journalistic investigation and information provided in confidence whilst operating under cover.

In considering the second bullet point, the Tribunal notes that where information was provided by journalists to Ofgem, from or with reference to a source, there would have been a clear expectation of confidentiality for this element to be met.

On the third bullet point, it would be detrimental to the interests of The Times if it affected the trust that could be placed in it by third parties or disclosed possible reporting or journalistic investigations. The Times has not consented to the release of any of communications.

The common law of confidence has developed in the light of Articles 8 and 10 of the European Convention on Human Rights to provide, in effect, that the misuse of ‘private’ information can also give rise to an actionable breach of confidence. If an individual objectively has a reasonable expectation of privacy in relation to the information, it may amount to an actionable breach of confidence if the balancing exercise between Article 8 and Article 10 rights comes down in favour of Article 8.

Section 41 is an absolute exemption, but a public interest defence is available to a breach of confidence claim. Accordingly, there is an inbuilt balancing of the public interest in determining whether or not there is an actionable breach.

As for element (ii) set out above, clearly The Times is a legal person entitled to enforce Ofgem’s duty of confidence in relation to information in the withheld documents identified.

The final part of the test for engaging section 41 is whether the action for breach of confidence is likely to succeed. From the information before us, there is no apparent defence or lawful excuse to a breach of confidence. The Times had a reasonable expectation of confidentiality in the information within the documents identified by the Tribunal as within the scope of section 41. On balance, the public interest in disclosure does not outweigh the protection of confidences in this case.

We conclude that documents 6A, 7, 8, 19 and 35 are exempt from disclosure under section 41 FOIA.

We do not consider that there is the necessary quality of confidence with regard to the other documents (not already identified as exempt). It can suffice that the preservation of confidentiality is of substantial concern to the person in question, which is not regarded as a high threshold to satisfy. However, where journalists engage with a public authority that is subject to FOIA, there can be no expectation that such exchanges will automatically be exempt by reason of journalistic activities. There is no cloak of confidentiality that can be universally applied to all such exchanges whatever the content. From the content, we are not satisfied that there would be justified cause for concern in preserving confidentiality for the remaining documents.