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

We have considered section 31 in relation to the information within the closed bundle not already found to be exempt under either section 44 or section 41.

Ofgem relies on the purpose set out at section 31(2)(c) FOIA, being “(c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise…”.

Whether circumstances exist to justify regulatory action, derive from provisions of the 1986 and 1989 Acts. Both Acts empower Ofgem in carrying out its functions in relation to licenses and certification. In this instance, there was an ongoing investigation into whether British Gas was complying with its licence obligations.

We are satisfied that 31(2)(c) FOIA is engaged in relation to document 34 when considering the document as a whole.

Section 31 is a qualified exemption, meaning that where it is engaged, we must still determine the public interest in the information being released. There is a distinction to be drawn between matters in which the public may be interested and matters which are properly in the public interest i.e. it is for the public good that particular information be known. Press articles are not, or not exclusively, determinative of that latter question.

There is a public interest in the transparency and accountability of public authorities generally, particularly in the public having confidence that public authorities are discharging their obligations. Nevertheless, given that Ofgem’s investigation was said to be ongoing at the time of its Response to the Requests, we find that the public interest balance lies in withholding the information.

Accordingly, Ofgem was entitled to rely on section 31 in terms of document 34. We find no other information (not already found to be exempt) captured by the criteria of this exemption.

The exemption under section 43(2) of FOIA uses the terms ‘would’ and ‘would be likely to’ prejudice the commercial interests of any person. This means that the prejudice in question is more probable than not or that there is a real and significant risk of it happening.

The following statement from a First-tier Tribunal case was subsequently confirmed by the Court of Appeal in the case of Department for Work and Pensions v Information Commissioner & Frank Zola [2016] EWCA Civ 758, as being the correct approach:

“On the basis of these decisions there are two possible limbs on which a prejudice based exemption might be engaged. Firstly, the occurrence of prejudice to the specified interest is more probable than not, and secondly there is a real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not.”[27] – see also Carolyne Willow v Information Commissioner and Ministry of Justice [2017] EWCA Civ 1876 at paragraph 27.

Therefore, for such exemption to apply, there must be some causative link between the potential disclosure of the relevant information and the prejudice to the commercial interests of a person. The prejudice must also be real, actual or of substance and it must relate to the interests protected by the exemption.

The commercial interests raised are those of The Times. The information to which section 43(2) could apply has already been identified as exempt for other reasons. The exemption is also argued in relation to most of the other communications. We are simply not satisfied that disclosure of the information within the documents not already found to be exempt would be likely to affect The Times’ commercial interests.

A key point is the time the exemption is to be assessed. There may be sensitivities at the time of exchange that have disappeared by the time of the Response. That is the relevant date. In this instance, there is not a real or significant risk of prejudice where information concerning a journalistic investigation has already been published at the date of Response. The remaining documents cannot be said, for instance, to reveal the newspaper’s approach to potential coverage so as to cause prejudice.

Of the documents within the closed bundle not already found to be exempt, the Tribunal finds no others to be exempt by virtue of section 43(2) FOIA.

The information withheld under section 40(2) comprises names, job titles and contact details (telephone numbers and email addresses). Plainly, the contact details are personal information exempted from disclosure under section 40(2).

Names and job titles are ‘personal data’, but only exempt information if one of the conditions in section 40(3A), (3B) or (4A) is met. Here, the exchanges are between members of the Media Team and a national newspaper. There are legitimate interests in disclosure of the information including the identity of those involved, other than individuals in junior roles. We are not satisfied that some names belong to those holding ‘junior’ positions from their job titles and involvement in the exchanges.

There is general public interest in transparency where a regulator engages with the press. We accept that the processing is reasonably necessary for these interests. There is not an alternative means by which the Appellant can obtain this type of information about the requested matter. We find that such interests are not overridden by the interests and rights of the data subjects. The Times has provided its own reasons for not wishing disclosure of any part of the communications. Where the information concerns material subsequently published under the name of the reporter, that personal data was already placed in the public domain by the time of the Responses.

Moreover, those in senior positions at Ofgem involved in issuing press releases, responding to press enquiries and communicating with journalists more generally in a role within a public authority, cannot expect anonymity.

Those individuals who are not in senior roles are identified in the CLOSED Annex, where there is also additional closed reasoning. Their details are exempt under section 40(2) and should be redacted as should third party details who were merely copied into communications. To this limited extent only Ofgem was entitled to rely upon section 40(2) FOIA. None of the three conditions are otherwise satisfied.