[2024] UKUT 195 (AAC)

When considering whether the exemption in s41 applied, the issue in contention before the FTT was whether disclosure of the undisclosed information would cause an actionable breach of confidence (i.e. whether s41(1)(b) applied), and, specifically

Resolving both of the above involved the FTT making evaluative judgements i.e. (in the words of the Supreme Court in Lifestyle v Amazon) “multifactorial assessment[s] of the documents, the evidence and the submissions made by the parties”.

The FTT approached the question of “detriment” through analysing the “tutor advantage argument” (disclosure would advantage private tutors, and so undermine the fairness of the 11+ exam, to GLA’s detriment) and the “competitor advantage argument” (disclosure would present a current or future competitor with an unfair (to GLA) advantage in the market).

It is clear enough that the FTT decision reached the view that disclosure would be detrimental to GLA principally on the basis of finding the “competitor advantage argument” persuasive: this is the clear inference from the FTT decision reasons expressly finding “limited” force in the “tutor advantage argument”: see [75] opening sentence, and sub-paragraphs (4) and (5). I note what is said at [77] about the FTT decision reasons concluding on detriment “taking its analysis of the Tutor Advantage and Competitor Advantage arguments together”; but this does not detract from, or change, what is clearly and expressly said at [75] about the limitations of the “tutor advantage argument”. As I put it in my summary of the FTT decision reasons above, any advantage accruing to private tutors as a result of disclosure was marginal; it follows that, even if it had been found that no material advantage would have accrued to tutors on disclosure of the undisclosed information, the conclusion of the FTT decision reasons would not have changed.

From this it follows that there is no need to deal with the aspects of the grounds of appeal that allege errors of law specifically with regard to the FTT decision reasoning on the advantage that would accrue to private tutors if the undisclosed information were disclosed; any legal errors in that reasoning would be immaterial.

Turning to the FTT decision’s (material) finding that the “competitor advantage argument” was made out, such that disclosure would be detrimental to GLA by giving a potential competitor an unfair advantage – the grounds challenged this evaluative judgement on the FTT’s part as inadequately explained, and so in error in law. In particular, the FTT decision reasons, it is said, inadequately explain why the countervailing submissions and evidence put before the FTT – that the nature of the 11+ exam was such that the undisclosed information would not give a competitor any meaningful advantage (over GLA) – was rejected. Further, related points were made in Mr Coombs’ “reply” to TBGS’ “response” to this appeal, about the evidence of Mr Hilton, whose witness statement spelled out the “unfair advantage” consequences of disclosure which the FTT decision found persuasive; it was said that the FTT decision had fallen into error because

It seems to me the FTT decision reasoning on the “competitor advantage” point was clear and straightforward: its essence was (1) that the FTT had found the undisclosed information to be “important and sensitive” (see [72] – with whose analysis even the dissenting reasons agreed); and (2) that to hand such information to a competitor would be to give it a head-start or leg-up (my words; a “benchmark”, is what the FTT decision calls it); that would be an unfair advantage. Reasons are given at [76(4)-(6)] as to why disclosing specific components of the undisclosed information – the number of questions in the 2019 exam, and the “reliability” analysis – would help a competitor, to GLA’s detriment.

The grounds of appeal (in part by reference to the dissenting reasons) point to arguments (presented either in evidence or in submissions to the FTT) as to why the undisclosed information would be of no great value to a competitor; it was “narrow” information, about the exam for single year; new exams were set each year; GLA held “banks” of questions; knowing the number of questions couldn’t possibly convey any material advantage.

In my view, it is clear enough, by obvious inference if not expressly, that the FTT decision simply did not accept that the undisclosed information was as trivial (in commercial terms) as these submissions, and witness evidence, portrayed it; moreover, the FTT decision reasons did adequately explain, in substance, this evaluative judgement on its part: the undisclosed information was important, sensitive and gave a competitor a head-start (commercially) that had not been available to GLA.

As to whether there was an error of law in the FTT decision reaching the evaluative judgement that it did, that, as the authorities illustrate, is a relatively high hurdle. As is graphically illustrated by the split panel in this case, it is clear that different tribunal may have reached a different conclusion on the submissions and evidence that were presented; but, equally clearly, that is no indicator of the evaluative judgement reached being in error of law. The authorities make clear that, on an appeal against a first-instance tribunal’s evaluative judgment, it is not the role of the appellate tribunal to “island hop” amid the evidence presented at first instance (or revisit the first instance panel’s evaluation of the witnesses, including, here, Mr Hilton). The question is whether the evaluative judgement – about the undisclosed information being of material commercial value to a competitor, to GLA’s detriment – was one no reasonable tribunal could have reached on the evidence before it; or whether some material factor was not taken into account. I am not persuaded. The judgement was based on Mr Hilton’s evidence; the reasoning behind it was clear and straightforward, and dealt with the gist of the countervailing argument; it is not a judgement that can be said to be perverse or irrational. Moreover, it was an evaluative judgement by the specialist information rights tribunal, on a matter (the application of the exemption for confidential information) that arises for determination not infrequently.

For completeness, I add the following about some points made in the grounds of appeal and Mr Coombs’ “reply”:

Turning now to the FTT decision’s finding of no “public interest defence”, the FTT decision reasons, in essence, found that the public interest in a fuller “inquest” (my word; I use it colloquially, to allude to the kind of “comprehensive, independent, statistics-based assessment of the fairness of the exam (post-solution)” as is posited at [62]) into the episode of the errors in the 2019 exam, and the solution devised by TBGS with GLA, was outweighed by the public interest in protecting confidential (commercial) information. Importantly, the FTT decision reasons found that TBGS and GLA did not mislead, or attempt to mislead, in their public pronouncements associated with the episode: see [79(3)]. In my view, it is adequately clear, in context, that this latter finding materially countervailed, in the FTT decision reasoning, public interest concerns about actual or suspected “failings” (again, my word) by TBGS and/or GAL as found in the FTT decision (and which the grounds of appeal complain were not adequately dealt with in the FTT decisioning reasoning) e.g. the occurrence of the errors in the 2019 exam, and the upset they caused; and the statements made about the “independent” statistician, as against Dr Hutchison’s past employment with GLA.

The FTT decision reasoning is therefore, in my view and in this regard, adequate. As to whether there is an error of law in the conclusion reached – another “classic” evaluative judgment by the specialist tribunal – I am again not persuaded that this judgement was one no reasonable tribunal could have reached on the evidence before it, or that some material factor was not taken into account. As before, the circumstances of the FTT decision illustrate that another tribunal may have weighted the various factors differently, and reached a different verdict; but this is nothing to the point. I conclude that no error of law is made out.

In my view this also deals with the somewhat whimsical point at the end of the grounds about openness, transparency, and why the “residents of Buckinghamshire” should not see the undisclosed information: the analysis above is not based on any unduly narrow construction of FOIA, but rather on whether an first-instance tribunal erred in law in its evaluative judgement following a full and fair hearing of the issue – to which I have found the answer to be “no”.