United Kingdom Research & Innovation v The Information Commissioner & Anor

Information concerning the assessment and performance management of research programmes is not necessarily environmental information merely because the underlying research concerns environmental priorities. The relevant measure is the measure on which the information is focused, and that measure must have the required environmental impact.

For the qualified-person exemption under the Freedom of Information Act 2000, a tribunal must give the qualified person’s opinion appropriate consideration, but need not defer to it. The weight given may be limited where the opinion is brief and poorly reasoned.

Section 41 is an absolute exemption. The tribunal must apply the ordinary breach of confidence principles and ask whether an exceptional public interest justifies disclosure.

Two requests were made for information arising from mid-term reviews of university-run Centres for Doctoral Training funded by UKRI and its predecessor. The First-tier Tribunal allowed both appeals and ordered disclosure, subject to redaction of personal information.

UKRI appealed on grounds concerning the application of section 36 and section 41 of the Freedom of Information Act 2000. The requester also argued that the Environmental Information Regulations 2004 applied and advanced several additional arguments concerning estoppel, confidentiality and UKRI’s conduct.

The Upper Tribunal considered whether the requests were governed by FOIA or EIR, whether the section 36 qualified-person opinion had been properly considered, and whether the First-tier Tribunal had applied the correct tests under section 41.

1. Environmental information. The relevant task under the Environmental Information Regulations 2004 was to identify the measure on which the information was focused and then ask whether that measure had the requisite environmental impact. The requested information was on the performance assessment of Centres for Doctoral Training, not on the underlying research. The First-tier Tribunal was entitled to conclude that the assessment measure did not have the necessary environmental impact. FOIA therefore applied.
2. Section 36. The section 36 process involved two stages: first, whether there was a reasonable opinion of a qualified person concerning the specified prejudice; and second, whether the public interest in maintaining the exemption outweighed the public interest in disclosure. The First-tier Tribunal was not required to defer to the qualified person. It had to give the opinion appropriate consideration. Given the opinion’s brevity and lack of reasoning, it was entitled to give it very limited weight and to conduct its own public-interest assessment. Its conclusion that transparency and accountability outweighed the limited harm from disclosure was open to it.
3. Section 41. The First-tier Tribunal materially erred by failing properly to apply the three elements in Coco v AN Clark (Engineers) Ltd: the necessary quality of confidence, circumstances importing an obligation of confidence, and unauthorised use to the confider’s detriment. It wrongly focused on whether UKRI regarded the information as confidential, rather than on the confider’s reasonable expectations and the terms of imparting the information. It also failed adequately to consider whether preserving confidentiality was of substantial concern to the confider.
4. Section 41 is an absolute exemption, unlike a qualified exemption requiring a section 2(2)(b) balancing exercise. The relevant question was whether the public interest in disclosure was sufficient to defeat an otherwise actionable breach of confidence. The First-tier Tribunal failed to begin with the public interest in preserving confidence and failed to ask whether disclosure was justified by an exceptional case.
5. The appeal concerning the First Request was dismissed and the First-tier Tribunal’s decision was confirmed. The appeal concerning the Second Request was allowed, the decision was set aside, and the matter was remitted to the First-tier Tribunal for redetermination.

• First-tier Tribunal (General Regulatory Chamber): allowed both appeals and ordered disclosure, subject to redaction of personal information.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal concerning EA/2018/0216 and confirmed the First-tier Tribunal’s decision. It allowed the appeal concerning EA/2019/0139, set that decision aside and remitted the matter for redetermination.