[2024] UKUT 195 (AAC)

the FTT decision reasons did not explain what aspect of TBGS’s evidence was accepted. The FTT decision reasons (at [75(5)]) found that “any” release of specific information about the 2019 exam would be of “some” benefit to tutors: this was said to be nebulous and unspecific; and based on minimal evidence;

specific factors:

the FTT decision reasons do not deal with the evidence of Mr Coombs’ witnesses: Mr Knightley-Jones’ evidence had two fundamental points: (1) tutors primarily focus on teaching children about the underlying subject matter e.g. maths. (2) there are mass online data bases of questions which can be used to prepare for each exam, with records of past success in the exam; his evidence was that tutors created a “base line figure”, monitored progress and were able to predict success quite accurately; tutors would not tell 10 year olds tactics (it would distract them from answering questions quickly);

it was wrong for the FTT decision reasons to have given no express consideration to evidence called by the appellant. Why was it not sufficient to show that there was no tutor advantage?

Third point – competitor advantage

considering the tests (for whether disclosure would, or would be likely to, prejudice commercial interests under s43(2)) in HoganandOxford CC v ICO (an earlier FTT decision, to which the FTT decision directed itself, at [27]), the FTT decision reasons state (as regards there being no competitor to GLA as at the time of the FTT hearing) (at [76(2)]) that the “competitor advantage argument” is persuasive in relation to a potential competitor as well as to a competitor already in the field; the grounds call this an ”assertion”;

the possible detriments described in the FTT decision reasons at [76(4)-(6)] (knowledge about the number of questions and reliability would give a competitor a “benchmark” from which it could develop a rival test) are said to “ignore the evidence about how the tests are created”: questions are trialled to children to check for their reliability; GLA has “banks” of thousands of questions; each test is newly created each year; any competitor will face a significant barrier to entry (having to prepare a stock of questions) and, when doing so, will acquire data about how many questions children can do in 25 minutes, and reliability figures;

the FTT decision reasons do not give reasons for the points identified in the dissenting reasons e.g. that the number of questions must be in a narrow range, that the exam varies from year to year, and that there is no evidence that changing the number of questions would impose any costs;

Reasons and the finding on public interest

it is said that the remitting Upper Tribunal decision “compels specific reasons” from the FTT “answering the basis of the remittal to it”;

the FTT decision reasons set out the public interest in disclosing the information, only in general terms: [79], second sentence; yet the FTT decision’s findings of fact raise particular issues which support the dissenting reasons (at [89]), such as: