[2024] UKUT 195 (AAC)

References in what follows to

This was an appeal against the FTT decision, which found that the IC decision notice was in accordance with the law.

The IC decision notice related to certain information requested by Mr Coombs from TBGS on 13 October 2019, namely

The background to this request was, as set out at [4], that there were defects in an 11+ exam (the “2019 exam”) managed and administered by TBGS, and held on 12 September 2019; as a result, TBGS and GL Assessment Limited (“GLA”), a third party contracted by TBGS to design and supply test material and provide other services relating to the 11+ exam, agreed on a “statistics-based solution”; they both put out public statements on 1 October 2019 explaining and defending their solution as a measure based on detailed statistical analysis and ensuring fairness for all children involved.

TBGS did not provide items 1, 2, 3 and 4b of Mr Coombs’ information request (it disclosed the information at item 4a), citing the exemptions in sections 41 (information provided in confidence) and 43 (commercial interests).

The IC decision notice, in the words of [9], “purported to hold” that TBGS correctly applied s41 and s43(2) to the information it withheld (the FTT decision put it that way because, it said, in the accompanying reasons, the IC decision notice had dealt only with s41, and said that s43(2) had not been considered).

The FTT decision recorded at [19] that the parties reached agreement that the information which was the subject of the appeal (and to which I shall refer as the “undisclosed information”) was limited to

The FTT decision followed a hearing on 27-28 November 2023, at which both Mr Coombs and TBGS were represented by counsel (Mr Coombs by David Lawson; TBGS by Felicity McMahon and Hannah Gilliland). The first respondent was not represented at the FTT hearing and, per [3], was content to rely on his written case, which corresponded closely with that of TBGS.

The backdrop to the FTT decision was that a previous decision by the FTT on the same appeal was set aside by the Upper Tribunal in Coombs v Information Commissioner and TBGS [2023] UKUT 157 (AAC) (a decision of mine), and the case was remitted to a freshly constituted panel of the FTT for reconsideration at an oral hearing. The Upper Tribunal directed that there was to be a complete re-hearing of the appeal in all respects except that it would be taken as a finding of fact that the statistician’s report referred to in the requested information was not held by TBGS (or by another person on its behalf) at times relevant to the appeal.

The FTT decision was not unanimous: the majority (the two specialist tribunal members) decided to dismiss the appeal; the minority (the tribunal judge) would have allowed it. Applying regulation 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 SI 2008/2835, the decision of the majority became the FTT decision. In what follows I refer to the reasons of the majority for dismissing the appeal, as the FTT decision reasons, and to the reasons of the minority for preferring to allow the appeal, as the dissenting reasons.