Latest Tribunal decision

John Connor Press Associates Limited v The Information Commissioner
IT Decision: "We have decided to allow the appeal. As the information in issue has now been disclosed to the Appellant we make no further direction or order." Read the full notice

I have reproduced some of the detail below, though suggest that the full text is well worth reading in detail, upon reading this decsion I've outlined that this decision is important for the following reasons:

-It again offers an opposing interpretation of the FOIA by the Tribunal compared to the IC's deliberations even though the notice was not formally overturned because the information had since been released

-S13 of document outlines that Counsel for the IC argued that the Tribunal should take a restrictive view of the appeal (focusing on more on S50 of the FOIA rather than S58), which the Tribunal rejected

-The notice offers a first tribunal perspective on the "would, or would be likely to" part of the "prejudice the commercial interests" exemption, quoting a pervious DPA case that states the term was interpreted as: "connotes a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests.". The Tribunal finds that: "We have concluded that in this particular case the threshold we have sought to define was not achieved."

-The triubnal notes that "insufficient information about the structure of the arrangements being negotiated with Beth Derbyshire at the time was brought to light to enable the Commissioner to conclude that NMM’s negotiating position would have been undermined had the unredacted documents been disclosed.". Although the triubnal does not mention (perhaps not being the remit for this case) it is interesting to suggest whether the issuing of an information notice (under S51 of the FOIA) by the ICO for all information might menat more information could have been forthcoming as evidence of the circumstances. According the the request I made late last year to teh ICO, an information notice was not issued for this case. (See the spreadsheet I received from the ICO in December 2005, listing all INs issued so far)

Overview of the originalk request: "John Connor Press Associates Limited requested National Maritime Museum to provide it with all documentation and correspondence relating to any king public the financial details of the negotiations which immediately preceded those active negotiations.". The NMM used S43(2) to withold "all financial information" in the release made. JCPAL appealed to the IC. "By the time that the Information Commissioner had completed his investigation, pursuant to that application, and had issued a Decision Notice (which he did on 20 June 2005), NMM had concluded that the commercial sensitivity of the previously withhold financial information had declined to such a level that un-redacted copies of the relevant documents could be released."...."The Decision Notice recorded that the Information Commissioner had concluded that the financial information fell within the exemption provided by Section 43(2) and that the public interest in maintaining that exemption overrode the public interest in disclosing the information at the relevant time.". JCPA still decided to appeal the decision.

The appeal:
"In its amended Grounds of Appeal JCPA set out two grounds of appeal. The first ground was most accurately summarised in paragraph 3 of the Commissioner’s amended Reply, in which he said that it was that “the Commissioner…wrongly decided that the exemption under section 43 (2) of the Act is relevant to this case”.

The second ground of appeal was that, if the financial data in question was exempt
information, it should still have been disclosed on the basis that the public interest indisclosure outweighed the public interest in protecting the NMM from the prejudice it was likely to suffer as the result of disclosure. For the reasons given below we have concluded that the first ground of appeal succeeds and we do not therefore need to give further consideration to the second ground."

"The question we have to answer in relation to the first ground of appeal is whether disclosure of the particular information withheld from JCPA would have been “likely” to cause such prejudice to the NMM, at the time when disclosure was refused, by undermining its negotiating position with Beth Derbyshire. We interpret the expression “likely to prejudice” as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk. We draw support for that view from the words of Mr Justice Munby in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin), a case in which the same expression fell to be construed under the Data Protection Act 1998. He said: “I accept that “likely” … does not mean more probable than not. But on the other hand, it must connote a significantly greater degree of probability than merely ‘more than fanciable’ ”. A little later he said that in his view the word “connotes a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not”.

We have concluded that in this particular case the threshold we have sought to define was not achieved for the following reasons:
(a) The information that NMM had already disclosed would have provided any artist entering into negotiations with NMM with a lot of information (as summarised in paragraph 5 above) that would be valuable to him or her;
(b) The fact that it had already been disclosed that the contract with Conrad Shawcross provided for a contribution to the cost of materials, as opposed, for example, to a flat fee, reduces very materially the value of the financial information that was withheld;
(c) The nature of the works created by Conrad Shawcross and Beth Derbyshire were so different that they could not be treated as true comparables, for the purpose of negotiation, particularly in view of the level of disclosure referred to in (a) above - we were not convinced that the similarities relied upon by Ms Hogan (see paragraph 14 above) were especially relevant in this respect; and 17 We also concluded that, despite Ms Hogan’s efforts to investigate the position fully and the NMM’s cooperation and evident commitment to public disclosure, insufficient information about the structure of the arrangements being negotiated with Beth Derbyshire at the time was brought to light to enable the Commissioner to conclude that NMM’s negotiating position would have been undermined had the unredacted documents been disclosed."

"We have accordingly concluded that no sufficient risk of prejudice to the commercial interests of the NMM was demonstrated to justify the exemption under section 43(2) being applied to the redacted financial information at the relevant time."

View the original Decision Notice from the IC