[2025] UKUT 308 (AAC)

the Appellant submits that the Tribunal failed to appreciate that disclosure of the information within the Slides at the Session destroyed any confidentiality they might previously have possessed. The facts, it is argued, admitted of only one conclusion which was that the Session involved the information being imparted to the public. This argument was not put to the Tribunal, and it was not required to consider the point of its own motion. As the Commissioner’s submissions demonstrate, it is possible in law for a duty of confidence to survive limited dissemination of information. It cannot therefore be said that the Tribunal’s decision was incompatible with the law of confidence. For similar reasons, I am not persuaded by the Appellant’s argument that information about the topic of consent, that drew on material in the public domain, could not be considered confidential. The authorities demonstrate that information that is based on, or derived from, information in the public domain is capable in law of attracting a duty of confidence by virtue of ‘the application of the skill and ingenuity of the human brain’ (see Mosley v News Group Newspapers).

I now deal with the Appellant’s arguments that the First-tier Tribunal erred in law in its treatment of copyright law. The Appellant did not, in terms, argue before the Tribunal that the interest which SoSE sought to protect was, in substance, something protected only by copyright law so that the information could not be subject to an obligation of confidence. The Appellant’s copyright argument was simply that, if SoSE’s materials were wrongly used by other providers, ‘it can be protected by copyright’. This argument was not further developed but I read it as an argument that, if the Slides were disclosed, the detriment limb of the Coco v Clark test would not be satisfied so that there could not be an actionable breach of confidence for the purposes of section 41 FOIA. I do not interpret the argument that the information ‘can be protected by copyright’ as having been an argument that what SoSE sought to protect was not information at all but design features. Had that been what the Appellant meant, she could easily have said so.

The above features of the Appellant’s copyright-related arguments before the First-tier Tribunal provide the relevant context to her arguments before the Upper Tribunal:

the Appellant argues that misuse of a ready-made set of slides is not detriment by way of misuse of confidential information, that, on its own, ‘attractiveness’ does not relate to any quality of the information within the Slides, and the expression of information is not something protected by the law of confidence. These arguments were not put to the Tribunal and the Tribunal’s findings do not betray a legal misdirection about the law of confidence. As the authorities demonstrate, information is capable of being protected by both the law of confidence and copyright. Furthermore, the way in which information is expressed may be the product of a unique idea and ideas are capable of constituting a form of information (a policy, for instance, is a type of idea and FOIA includes express provision about information relating to policy development: see section 35);

the Appellant argues that expending resources in enforcing copyright is not a recognised form of detriment for the purposes of the law of confidence. However, this was not the argument put to the Tribunal; the Appellant’s case before the Tribunal was that the availability of copyright protection itself meant that there could be no detriment recognised by the law of confidence. Futhermore, the argument is difficult to reconcile with the fact that particular information may be protected by both the law of confidence and copyright;

the Appellant argues that the Tribunal conflated copyright and confidentiality. Again, this was not the argument put to the Tribunal; the Appellant did not argue that the Commissioner’s decision notice was flawed because he conflated copyright and confidentiality. The Tribunal’s finding that the Slides were ‘unique’ does not show that it assumed that anything protected by copyright was also capable of being protected by the law of confidence. The application of human ingenuity and skill to publicly available material, as referred to in the authorities, may result in something that may properly be described as unique.