First-tier Tribunal (General Regulatory Chamber)

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

Fecha: 24-Oct-2025

Ofgem’s supplemental response

Ofgem’s supplemental response

34.

As the withheld information consists of correspondence with The Times newspaper, Ofgem consulted The Times on 17 April 2025. Its letter of reply of 24 April 2025 is provided with The Times’ consent. Having provided The Times with copies of the Requests and the material identified for possible release, The Times was of the clear view that three exemptions applied. Firstly, section 40(2) as the information revealed personal data about their journalists. This went beyond names and included “jigsaw identification” based on their future publications. The Times also identified sections 41 and 43(2) FOIA based broadly on the confidentiality of newsgathering activity. This included what The Times was, and was not, prepared to publish. The Times also highlighted the confidential nature of information and referred to a number of published articles.

35.

In the normal course of events communications between journalists and Ofgem’s media were treated as confidential. It is submitted that each piece of correspondence in one way or another forms part of The Times’ newsgathering activity and plans for unpublished articles. Examples are provided to demonstrate the point.

36.

Having reviewed, the closed bundle and having consulted The Times, Ofgem agreed to the Rule 14(6) order being lifted for paragraph 93 of Mr Alexander’s first witness statement and to paragraph 7 of its submissions of 16 June 2025 dealing with the additional exemptions claimed. These paragraphs are unredacted in the resubmitted versions.

The Appellant’s Reply to Ofgem’s Responses

37.

Ofgem have not explained how they “obtained” emails that they themselves sent.

38.

None of Ofgem’s responses address correspondence about threats The Times claims Ofgem made to force them to reveal journalistic material and their subsequent withdrawal.

39.

Any “chilling effect” under section 31 has already happened based on reporting in The Times – other journalists considering investigating energy suppliers will already be aware of what happened.

40.

Redaction would allow the core of the threats to be released without revealing any secrets about what exactly Ofgem was investigating, if necessary.

41.

There is no sense in which the threats were “obtained” from anyone else so as to engage section 44 FOIA.

42.

In reply to Ofgem’s response to the Tribunal’s directions of 23 June 2025, the Appellant reiterated that it is likely that some information can be released with redactions. By way of example, The Times had published that Ofgem had used statutory powers to make threats of criminal sanctions and fines if it did not hand over confidential journalistic material, the Times resisted and Ofgem backed down.

43.

The Appellant finds it hard to see how any new claims of sections 41 and 43(2) FOIA apply at all, particularly given the broad outline already in the public domain. However, the Appellant considers that if the information really does have the “quality of confidence” then it creates a strong public interest in making exactly what was said available. The Appellant accepts that the names of anyone at The Times not already in the public domain are likely exempt under section 40(2). Whether the names of Ofgem staff are exempt would depend upon their seniority.