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

The Tribunal had no difficulty in concluding that the first limb of section 41(1)(a) FOIA is satisfied where withheld information was obtained by Ofgem from another person, namely from a journalist at The Times.

However, section 41(1)(a) was not fulfilled in the numerous instances where Ofgem was not receiving information but providing it to The Times.

Where information was received by Ofgem, the Tribunal must decide whether the second limb of section 41(1) is met. The question here is whether there was an actionable breach of confidence at the date of the response to the request. That is the relevant date. In our considerations we are not limited to matters known to Ofgem. It is permissible to have regard to later occurring matters if they cast light on the circumstances at the relevant date.

For section 41(1)(b) to be satisfied:

The disclosure of the information must constitute a breach of confidence; (ii) A legal person must be able to bring an action for the breach of confidence to court; (iii) That court action must be likely to succeed.

Does the information have the necessary quality of confidence?

Was it imparted in circumstances importing an obligation of confidence?