Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 157 (AAC)

Fecha: 05-Jul-2023

Ground b

Ground b.

29.

Ground b. relates to the public interest balance test that the FTT (rightly) undertook when considering both sections relevant to whether the requested information was exempt information. The public interest balance test is “in-built” to s43 (commercial interests), as s43 does not confer absolute exemption, and so s2(2)(b) applies. As the FTT decision stated at [7], s41 (information provided in confidence) does confer absolute exemption but

for the exemption to apply, disclosure of the information must constitute an actionable breach of confidence; and

overriding public interest in disclosure is a defence to an action for breach of confidentiality.

30.

The FTT decision gave conclusions on the public interest balance test at [97], [99] and [100] – it was s41 being considered at this point in the decision but the same analysis is imported into the s43 analysis, at [101], last two sentences. Those paragraphs read as follows:

[97] Clearly there is a public interest in scrutiny of the administration of entrance tests. We also agree that there is a public interest in knowing how pupils who sat the test were affected by errors in it. However, as the Appellant has argued “that no one knew how each child was impacted or how long it took to contact the schools involved” – it is therefore difficult to assess what weight might be given to this in the Public Interest test. The evidence of Ms Walton suggests there was overall satisfaction with the final outcome, suggesting little weight, if any, in disclosure. We accept this on the evidence before us. In any event we must consider the overbearing weight to be given to the significant edge to those pupils receiving tuition, were the withheld information to provide private tutors with such an unfair advantage as has been so clearly identified by the witnesses at this hearing. We unreservedly accept this evidence, which, in any event has not been challenged.

…

[99] As argued by TBGS, there is an important general public interest in maintaining the integrity and fairness of the test and ensuring, so far as possible, that pupils who can access private tutoring are not at an advantage over those that cannot. We accept the evidence in this regard.

[100] In terms of the FOIA generally, and as the Commissioner acknowledged, there is a public interest in openness and accountability surrounding 11 plus testing. However, there is also a wider public interest in preserving the principle of confidentiality and the need to protect the relationship of trust between confider and confidant. As decisions taken by the Courts have shown, very significant public interest factors must be present in order to override the strong public interest in maintaining confidentiality, in relation to matters such as misconduct, illegality or gross immorality for example. This is not a case where such matters as outlined above arise however. The Tribunal finds that the balance in this case clearly favours non-disclosure.

31.

Consideration of ground b. can be broken down as follows:

what was the evidence before the FTT as regards what is referred to in [97] as “the significant edge to those pupils receiving tuition” (and which I will refer to as “‘tutors’ advantage’”)

was that evidence challenged?

in the context of the answers to the questions above, did the FTT decision adequately explain why “overbearing weight” was to be given to ‘tutors’ advantage’ in the public interest balance test?