Department for Work And Pensions v The Information Commissioner & Anor

For the commercial-interests exemption in section 43(2) of the Freedom of Information Act 2000, commercial interests may include loss of income, profits, charitable donations and volunteer workers. A specialist tribunal’s factual evaluation should receive appropriate respect on appeal. An unsatisfactory expression of its reasons does not establish legal error unless there is a cogent basis for concluding that it failed to consider material evidence.

Where the tribunal has rejected a claimed causal link between disclosure and prejudice, and its public-interest assessment is not thereby flawed, its decision to order disclosure will stand.

The Department for Work and Pensions withheld the identities of organisations hosting placements under workfare schemes. It relied on the commercial-interests exemption in section 43(2) and the effective-conduct-of-public-affairs exemption in section 36(2)(c) of the Freedom of Information Act 2000.

The Information Commissioner ordered disclosure. The First-tier Tribunal dismissed the Department’s appeals. The Upper Tribunal dismissed a further appeal in [2014] UKUT 0334 (AAC).

The Department appealed on the construction of section 43(2), the test for prejudice, the alleged perversity of the First-tier Tribunal’s findings on commercial prejudice, and its public-interest assessment. The central issue was whether legal error had been shown in the tribunal’s conclusion that disclosure should be ordered.

1. Appeal dismissed by a majority. The Master of the Rolls and Sir Stephen Richards agreed that the First-tier Tribunal’s decision was not vitiated by legal error. Lloyd Jones LJ would have allowed the appeal and remitted the matter.

2. All members of the court agreed on ground 1. The expression “commercial interests” in section 43(2) of the Freedom of Information Act 2000 is broad enough to include loss of income, profits and donations, and loss of volunteer workers. It does not include the Department’s costs of administering a social-welfare scheme. The court accepted, for present purposes, the three-stage approach to prejudice stated in Hogan and Oxford City Council v Information Commissioner, [2011] 1 Info LR 588. Any imprecision in the First-tier Tribunal’s wording did not amount to a material misdirection.

3. On grounds 2 and 3, the majority held that the tribunal had considered the evidence concerning Sue Ryder and PDSA, but was not persuaded that it established the required causal link between disclosure and commercial prejudice. Its reasoning was unsatisfactory, but there was no cogent basis for inferring that it had disregarded the evidence. Its failure expressly to discuss loss of custom, income, profit or donations was properly a reasons complaint, which had not been pursued.

4. The court reaffirmed that an appellate court should give appropriate respect to a specialist tribunal’s factual evaluation. This did not impose a distinct or enhanced legal test for perversity. No intensified scrutiny was justified here.

5. Since the majority rejected the asserted error on commercial prejudice, the First-tier Tribunal’s public-interest balance was not flawed on that basis. The Master of the Rolls added that, even if there had been such an error, there was no real possibility that the tribunal would have reached a different public-interest conclusion.

6. Lloyd Jones LJ dissented on grounds 2 and 3. He considered that the tribunal had failed to take proper account of relevant evidence of withdrawals and of distinct evidence concerning loss of custom, income and donations. In his view, that also undermined the public-interest evaluation and required remittal.

• Court of Appeal (Civil Division): Dismissed the Department’s appeal by a majority in [2016] EWCA Civ 758.
• Upper Tribunal (Administrative Appeals Chamber): Dismissed the Department’s appeal from the First-tier Tribunal in [2014] UKUT 0334 (AAC).
• First-tier Tribunal: Dismissed the Department’s joined appeals against the Information Commissioner’s decision notices, which had ordered disclosure.