James Coombs v Information Commissioner & Anor

An appellate tribunal must not repeat a specialist first-instance tribunal’s multifactorial evaluation. It may intervene only where an identifiable legal flaw, such as a logical gap, inconsistency, failure to consider a material factor, perversity or irrationality, makes the decision wrong.

Reasons must be read fairly, as a whole and in their evidential context. They need not address every submission or spell out every inferential step if the parties can understand why they succeeded or failed and an appellate court can assess the decision’s sustainability.

Where an actionable breach of confidence exemption under the Freedom of Information Act 2000 is upheld without legal error, it is unnecessary to determine an alternative commercial-interests exemption.

James Coombs sought information from The Buckinghamshire Grammar Schools concerning statistical analysis and the reliability of the 2019 11+ examination after errors were discovered. The school withheld the remaining information under sections 41 and 43 of the Freedom of Information Act 2000.

The First-tier Tribunal, by a majority, dismissed the appeal and upheld the information commissioner’s decision. It found that disclosure would amount to an actionable breach of confidence, principally because it would give a competitor of the testing provider an unfair commercial advantage. The tribunal had previously been remitted for a fresh hearing following Coombs v Information Commissioner and TBGS [2023] UKUT 157 (AAC).

Mr Coombs appealed against the later First-tier Tribunal decision, [2023] UKFTT 01026 (GRC), alleging inadequate reasons, legal error and perversity in its assessment of detriment and the public interest.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law. Its majority was entitled to uphold the confidential-information exemption in section 41 of the Freedom of Information Act 2000.
2. The questions of detriment to the testing provider and of a public-interest defence involved evaluative, multifactorial judgments. The Upper Tribunal could not reweigh the evidence or substitute its own assessment merely because another tribunal, as the First-tier Tribunal minority did, might have reached a different conclusion.
3. The First-tier Tribunal’s reasons adequately showed that its finding of detriment rested principally on the competitor-advantage argument. It found the undisclosed material commercially important and sensitive. Disclosure would give a present or potential competitor a benchmark and a commercial head-start which the provider did not itself possess. That reasoning addressed the substance of the contrary case that the material was narrow, related to one year’s examination, and had little commercial value.
4. Any alleged error in the analysis of advantage to private tutors was immaterial. The First-tier Tribunal had assigned that argument only limited force, so its conclusion would have remained unchanged even if disclosure gave tutors no material advantage.
5. The tribunal was also entitled to find that the public interest in fuller scrutiny of the examination errors and solution was outweighed by the public interest in protecting commercially confidential information. Its finding that neither the school nor the provider misled, or attempted to mislead, in public statements was a material answer to the asserted public-interest concerns.
6. As the section 41 conclusion independently sustained dismissal, the Upper Tribunal did not need to determine the alleged errors concerning section 43.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal decision: [2024] UKUT 195 (AAC).
• First-tier Tribunal (General Regulatory Chamber): by majority, dismissed the appeal under section 57 of the Freedom of Information Act 2000 and upheld the decision notice: [2023] UKFTT 01026 (GRC).
• Earlier Upper Tribunal proceedings: a previous First-tier Tribunal decision in the same appeal was set aside and the matter remitted for a fresh oral hearing: [2023] UKUT 157 (AAC).