HEFCE refused a request for information held in the database on the basis that disclosure would constitute an actionable breach of confidence (section 41). However, the Information Commissioner rejected this claim as he did not believe the HEIs would suffer any detriment if the information were disclosed. As such, they would not have an action for breach of confidence and the section 41 exemption was not engaged.
The Tribunal upheld the Commissioner's decision, but on different grounds. It accepted the risk of damage to any of the HEIs competitive position satisfied the requirement of establishing detriment. But concluded that the public interest factors in favour of disclosure of the information substantially outweighed those in favour of maintaining confidentiality and HEFCE would therefore have a valid public interest defence to any breach of confidence claim:
We believe that there is a very considerable public interest in public institutions of this type, which frequently have a strong connection with a particular town or community, making this type of information available. Certainly no compelling evidence or argument was put to us on why, in general terms, those responsible for such an institution should not have data on this aspect of their stewardship made available to the public as a whole. Guardian News and the Information Commissioner made the additional point, which we find compelling, that if the reason for an HEI having buildings that are unsuitable or in a poor state is that it has suffered from inadequate public funding, then that is an issue on which a properly informed public debate is required.The Tribunal also considered the meaning of "actionable" in section 41 and whether the exemption is engaged if a claim is merely arguable, or if it is necessary to establish that the claim would be successful.
"Our conclusion on this part of the case, therefore, is that the HEFCE must establish that disclosure would expose it to the risk of a breach of confidence claim which, on the balance of probabilities, would succeed. This includes considering whether the public authority would have a defence to the claim. Establishing that such a claim would be arguable is not sufficient to bring the exemption into play."The Higher Education Funding Council for England v Information Commissioner and Guardian News and Media Ltd (EA/2009/0036)