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

In summary, Ofgem says as follows below.

The Gas and Electricity Markets Authority (the “Authority”) regulates the gas and electricity markets in Great Britain. Ofgem carries out the Authority’s day-to-day work and investigates matters on its behalf.

The Requests are focused on Ofgem’s exercise of its general functions under the Gas Act 1986 (the “1986 Act”) to collect information with respect to exercising its functions in considering whether a licenced gas provider was complying with its licence obligations, and further, whether there was evidence to prompt Ofgem opening an enforcement investigation.

The Authority’s principal objective is to protect the interests of existing and future energy consumers. To do so, it exercises powers under the Electricity Act 1989 (the “1989 Act”) and the 1986 Act which give the Authority the function to investigate and take law enforcement against regulated parties in the electricity industry.

Ofgem submits that the appeal should be dismissed for the reasons given in the Decision Notices, the Commissioner’s Response and Ofgem’s Response.

The withheld information comprises emails between employees of The Times and Ofgem obtained by Ofgem in exercise of its general functions under the 1986 Act. Ofgem obtained information with respect to considering whether a licenced gas provider was complying with its licence obligations, and further whether there was evidence to prompt Ofgem opening an enforcement investigation.

Regarding section 31 FOIA, Ofgem says:

Disclosure would prejudice Ofgem’s current and ongoing investigation into British Gas’ compliance. British Gas would be on notice of the areas likely to be the focus of investigation. It could impact the process of ongoing and future evidence collection and information gathering.

These concerns apply equally to disclosure to parties who could be the subject of a future investigation. It would impact the investigation of other providers of the degree to which they did, or did not, comply with their Standards of Conduct, and broader licence obligations. These obligations are ongoing. Future investigations into compliance with Standards of Conduct will likely involve consideration of historical compliance data.

Ofgem relies on establishing and maintaining good relationships with third parties, including whistleblowers, to secure high-quality information and reporting. Disclosure of the withheld information would discourage third parties, or providers, from responding in an open and transparent way. Disclosure would prejudice the ability to gather facts and/or evidence. This applies to both current and future investigations.

Importantly, there is a concern that disclosure would reveal information about the threshold level at which Ofgem would initiate enforcement action with impact on compliance with licence obligations. Revealing such information would encourage providers to do the “bare minimum” needed to avoid enforcement action. Disclosure would impact more widely across Ofgem’s enforcement portfolio.

Importantly, there are already set pathways for disclosure, both to providers and

There is risk that disclosure of material which represents the initial thinking of Ofgem caseworkers could undermine the confidence of providers; it risks giving the impression that the outcome of the investigation is predetermined, undermining confidence in an independent process. As a result, providers may be less likely to engage openly with Ofgem. This, in turn, could impact on Ofgem’s ability to discharge its statutory functions.

Disclosure would undermine the basis on which Ofgem was able to select matters for enforcement investigation. It would impact not only investigation of compliance into British Gas, but also Ofgem enforcement investigations, and decision-making, more broadly.

It would undermine public confidence in Ofgem’s processes for enforcement of licence conditions, and in such inquiries being undertaken appropriately and with due regard to the rights and expectations of involved parties.

Disclosure would impact current and future investigations and enforcement actions.

In terms of the public interest test, Ofgem says the balance favours maintaining the exception:

Ofgem accepts there is a public interest in transparency in its approach to obtaining information in considering whether to open an enforcement investigation. That interest is addressed through disclosure by Ofgem as outlined in Enforcement Guidelines.

Decisions to open, and close, investigations are published on Ofgem’s website. The basis on which the decision was taken to open an investigation is set out in that notice. If enforcement action is taken, the nature of that action will be published on Ofgem’s website.

The withheld information will not significantly advance the public interest in transparency. Communications with third parties which relate to a decision to open an investigation represent an information gathering stage and may not yet be determinative. While internally that information can be handled with the appropriate caveats, public disclosure would, effectively, treat the information as it if were complete and conclusive.

Any public interest of the Appellant in understanding more about how Ofgem approaches its information gathering, particularly with third parties, while considering whether to exercise any of its enforcement functions (specifically in considering the evidential thresholds regarding opening an enforcement action) is an interest that is substantially outweighed by the public interest in ensuring that Ofgem can undertake its enforcement investigations, effectively, fairly, promptly and lawfully.