Jessica Learmond-Criqui v The Information Commissioner & Anor

The “would be likely to prejudice” test was analysed in the context of the s.29(1) exemption of the Data Protection Act 1998 in R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin). Munby J at [100] considered that:

“likely” … 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”. (emphasis added)

The Tribunal has endorsed Munby J’s observations when considering the equivalent language in Part II of FOIA: In the Tribunal in Hogan v Information Commissioner [2011] 1 Info LR 588 summarised the two standards of chance, would and would be likely, as follows:

“there are two possible limbs on which a prejudice-based exemption might be engaged. Firstly, the occurrence of prejudice to the specified interest is more probable than not [“would”], and secondly there is a real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not [“would be likely”].” ([33])

The First Tier Information Rights Tribunal in John Connor Press Associates v Information Commissioner (EA/2005/0005) also added clarity with regards to the minimum level of chance to satisfy the “would be likely to” test, considering at [15] that:

“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”.

The approach in Hogan at [29] – [35] has since been approved by the Court of Appeal in DWP v Information Commissioner [2016] EWCA Civ 758: per Lloyd Jones LJ at [27].

The Commissioner considered the scope of the complaint in relation to the request for information and concluded that:

The Appellant’s Grounds of Appeal are focused on the public interest balance, although she alternatively argues that s.43 is not engaged. The Appellant argues that the Commissioner erred in concluding that the public interest in maintaining the exemption under section 43(2) outweighs the public interest in disclosure. The Appellant argued that the public interest favours disclosure on the following grounds:

Further, the Appellant asked the Tribunal to consider the Second Part of the request which related to reports held by the UK Space Agency on health impacts of satellite radiation.

The Commissioner maintained his position and relied on the DN for the findings therein and the reasons therein for those findings. However, the Commissioner set out the Second Respondents observations in respect of the Appellant’s Grounds of Appeal:

Further, the Commissioner stated if it is accepted by the Tribunal that disclosure of the withheld information would prejudice the commercial interest of BEIS this will accordingly add weight to the public interest in maintaining the exemption.

In respect of the Second Part of the Appellants request the Commissioner argued (in the Tribunal’s view erroneously) that this was not part of the Appellant’s section 50 complaint. BEIS nevertheless informed the Commissioner that they did not hold this information.

The Second Respondent states that the Report is confidential in three respects. They are as follows:

“Firstly, the Report is based upon, and presents, information provided by OneWeb to the Government that attracts confidentiality by virtue of the NDA. The disclosure of the Report in 2020 would make the SoS liable to an action for breach of confidence from OneWeb pursuant to the NDA.

Secondly, the Report contains information the disclosure of which would likely make the SoS liable to OneWeb in an equitable action for breach of confidence. The Report clearly meets the Coco v AN Clark (Engineers) Ltd criteria.

Thirdly, the Report itself states that it is confidential to the Consultancy, and it should not be disclosed except in accordance with the terms of the engagement letter. The disclosure of the Report in 2020 would have made the SoS liable to an action for breach of confidence from the Consultancy.”

The Second Respondent also argues that the report contains trade secrets for the purposes of section 43(1) of FOIA.

The Second Respondent contends that the relevant commercial interests that are engaged are the commercial interests of the Second Respondent, its investors and of the Government from the evidence that commercial competitors are referenced in the report.

The Second Respondent recognised a limited public interest in the disclosure of the Report in that it would provide transparency into the financial appraisal which informed the Government’s decision to invest in OneWeb. However, the public interests in withholding disclosure of the Report, individually and cumulatively, they argue, outweigh the public interest in its disclosure. The Second Respondent argued the section 41 exemption applies, and the section 43 exemption applies.

The Tribunal notes that the Second Respondent in this Response does not refer to the second part of the request.

In addressing the BEIS report, the Appellant stated that section 43(2) is not engaged. In arguing the same, the Appellant provided various screenshots of news articles related to the Second Respondent. Regarding section 41, the Appellant contended that it is in the public interest to disclose the material which will be a defence to “any action by OneWeb for breach of confidence”. Further, the Appellant believed that the NDA would state the same.

In response to the Commissioner, the Appellant averred that the commercial interest of OneWeb is not affected so section 43(2) does not apply. Further, if the Tribunal disagrees with the Appellant’s conclusion, her position remains that the public interest of disclosure outweighs that of non-disclosure.

The Appellant argued that the information is not confidential as information has been filed in US Courts which is open to public scrutiny and the bankruptcy has been reported throughout the media in the United States. The Appellant provided various screenshots of news articles related to the Second Respondent in support of her claim.

The Appellant set out extensively (Paras 45 -54) her view that it is inconceivable that there are no reports on “the Health impact of using electromagnetic radiation/radiofrequency radiation from satellites on humans, animals, pollinators and trees – “: as set out in the Second part of the request.

Amongst other matters the Second Respondents Background set out the forum for the appeal hearing in their Skeletonargument dated 22 June 2023 – thus - ;

At no stage in the hearing did the Appellant take issue with these submissions. We find no material grounds for rebutting these submissions.

William Hardy was formerly the space policy advisor responsible for the Department’s policy interest in OneWeb. He provided written witness evidence to the Tribunal on the 24^th of March 2023. His witness statement identified the documents within the Department’s possession that fall within the scope of the Appellant’s information request and explained how those documents came to be in the Department’s possession. Further, he provided an overview of the nature of those documents. William Hardy addressed the public interest in the disclosure of those documents and explained the commercial interests that would be harmed if the documents were disclosedfurther in his evidence in open and closed sessions at the hearing.

Mr Hardy stated in relation to Part B of the request that he was not aware of any report which the Department for the UK Space Agency held on the health impacts of satellites sought for the purpose of considering the implications of HMG’s investment in OneWeb. Mr Hardy stated that the Appellants concern about potential health impacts is not a concern which the Department or the UK Space Agency shares. He stated that he had confirmed that position with the UK Space Agency who explained that the radiation for One Web satellites, which are over 1,000 Kilometres from earth, is very weak when it reaches earth and many orders of magnitude below the guideline limits for public exposure.

The Appellant in her late application for disclosure and admission of a supplementary bundle and witness statement filed by her respectively on 15 June and 21 June, argued in support of her appeal against the decision to withhold the requested information. She invited the tribunal to: “ - receive evidence which was not before the Commissioner; make different findings of fact from the Commissioner; and make a different final decision to that of the Commissioner”. Mr Bailey on behalf of the Commissioner consented to the application to admit these documents. Mr Waller objected to these documents being admitted at all. However, at the outset of the hearing we allowed that they be admitted on the basis that the Tribunal would assess its value at the hearing rather than create any disadvantage to the Appellant by being denied the opportunity to have the evidence considered.

The Appellant outlined the documents relevant to her appeal and recommended reading for the Tribunal in advance of her appeal. In her late witness statement, she provided a background to her request, an application for disclosure of redacted letters between the Second Respondent and the Commissioner; a health request, a request for financial information and the Appellant outlined that in her opinion the Commissioner erred in law; and the Appellant raised other public interest submissions.

The Appellant concluded that the Second Respondent provided no evidence from OneWeb to support its argument of prejudice to commercial interests. Further, that there is no evidence of publicly available information from the the data room which would have been set up post US court Chapter 11 bankruptcy.

The Appellant contends that there is no evidence of non-disclosure agreements. Finally, the Appellant argues that the Government have misled the public in relation to its intentions of buying OneWeb.

The Second Respondent’s reply to the late application dated 26 June 2023 was comprehensive and compelling. The application was effectively a late attempt by the Appellant to bolster and expand the arguments.

This Tribunal accept and adopt the rebuttal by the Second Respondents in their reply of 26 June 2023. We accept and adopt the seven reasons as set out clearly and persuasively reasoned from paragraphs 19 to 29 therein. We do not accept that the additional evidence in the new Witness statement from the Appellant adds material information or evidence to assist her arguments herein.

While we admitted the late documentation and submissions, we found nothing of material value to assist us in determining the issues before us. With respect to the first part of the request;

The Tribunal have read and considered all the submissions from the parties and evidence including witness statements provided by the Appellant and on behalf of the Second Respondent. We heard evidence from William Hardy, who at the outset of this appeal was the space policy advisor responsible for DSIT’s interest in OneWeb. He was asked a limited number of questions in Open Session by the Appellant and the Panel but because of the nature of his evidence, the pertinent and material evidence was heard in Closed Session. The Closed Session Gist of that evidence is as follows;

The Tribunal have been persuaded that releasing the withheld information would have put information about One Web’s business, structure and finance options in the public domain that would usually be private for a commercial venture. We accept that the information could have been, and still could be used, by identified competitors to draw assumptions on OneWeb’s commercial strengths, weaknesses, and future planning, giving them an advantage over OneWeb and that disclosure would also weaken OneWeb’s ability to compete for contracts and to do business with suppliers and customers.

We accept that release of the withheld information at the time would have increased the commercial risk to current and potential investors and it could have prevented OneWeb from attracting enough investment to become fully funded for its first-generation constellation. And that as HMG are a shareholder, releasing the information would therefore detriment the UK taxpayers’ interests as well.

We have also been persuaded that disclosure would damage the trust that any other current or future commercial partner might have in HMG’s ability to protect information they share in confidence and consequently prejudice and reduce the bargaining power of HMG in future negotiations.

Having considered all the evidence before us we are satisfied that the relevant commercial interests that are engaged are the commercial interests of OneWeb, of its investors and of the Government. So far as OneWeb is concerned, we are persuaded that it would be placed at a competitive disadvantage compared with its competitors if they were provided with insight into its business plan, which normally remains private and confidential to a business enterprise and that the commercial interests of investors are engaged in that the disclosure of the business plan could lead to the value of their investment decreasing. We also accept that the commercial interests of the Government are engaged firstly because of the likelihood that the value of its investment could fall if the Report is published, and secondly because disclosure would likely undermine trust between the Government and OneWeb and any future potential commercial partner.

We are persuaded that it is more probable than not that prejudice would be caused to the above commercial interests through disclosure. Alternatively, there is a real and significant risk of prejudice. That test is satisfied as at the date of the information request, in September 2020, the relevant time for considering whether s43 is engaged (Visser v Information Commissioner (EA/2011/0188) at [19]).

We further accept that even if the position is considered as at the present date, there would still be prejudice as information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)”.

We are satisfied on all the evidence before us, and through the non-disclosure agreement, that there would, or would be likely to be real, actual prejudice of substance by disclosure of the withheld information and there is a causal link between the disclosure and the prejudice claimed. We find s43(2) is engaged.

Section 43 FOIA is a qualified exemption to disclosure and is therefore subject to the public interest test under section 2(2)(b) FOIA. This states that a public authority does not have to provide the information if;“in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”.

The Tribunal accept the Appellants’ argument that there is a significant public interest in ensuring transparency where the expenditure or lending of large sums of public funds are involved (Brighton and Hove City Council v the Information Commissioner and John Keenan (EA/2016/0119) at [43]). We agree that as far as the Lazard Report is concerned there is a public interest in disclosure in that it would provide further transparency into the financial appraisal which informed the Government’s decision to invest in OneWeb.

We acknowledge and accept the submissions made on behalf of the Second Respondent that:

The letter Sam Beckett wrote on 26 June 2022 summarises the scope and purpose of the Lazard Report and the key conclusions that were reached [OB/19-21]. It is not necessary for the public to see the full report to understand these matters.

Transparency had already been significantly achieved into the investment through the information about OneWeb and the Government’s decision to invest within it that was made publicly available before JLC submitted her request for information.”

We acknowledge the fact the information considered in the Report was provided to HMT under strict confidentiality, and that Lazard provided the Report under confidentiality, demonstrates the real commercial sensitivity of the information, and presents significant weight in the public interest in favour of non-disclosure.

We also acknowledge and agree that there is a strong public interest in fostering confidence in the business community that commercial confidential information provided to the Government will not be disclosed (see by analogy Brighton and Hove City Council v the Information Commissioner and John Keenan (EA/2016/0119) at [50], and R (Veolia ES Nottinghamshire Ltd) v Nottinghamshire CC [2012] PTSR 185 at [126] per Rix LJ).

We find that in the public sector there is often a difficult balancing exercise to be performed between the speed of decision making and full internal consultation. Unusual decisions must be taken in unusual circumstances and the material facts are not always determinative. Transparency v Public Interest is not always easy and will on occasions raise suspicions and rumours. There was a ministerial direction here because of the unusual circumstances. We have no evidence to suggest anything has been wrongly withheld. In all the circumstances and after considering all the material evidence and all factual and legal issues before us we find the overwhelming public interest in withholding disclosure of the Report, individually and cumulatively, outweigh the limited public interests in its disclosure.

With respect to the second part of the request the Tribunal concluded, based on all the evidence before us, that on the balance of probabilities that BEIS held no relevant or material reports on the health impacts of using electromagnetic radiation/ radiofrequency radiation from satellites in considering the implications of this investment.

Accordingly, we must dismiss both parts of this appeal.