Julian Todd v The Information Commissioner

The appeal is allowed.

A Decision Notice is substituted in the following terms.

On 2 February 2022 the Appellant, Mr Julian Todd, wrote to Staffordshire University (‘the University’) requesting, pursuant to the Freedom of Information Act 2000 (‘FOIA’) (Footnote: ¹):

The University responded on 2 March 2022, refusing to supply the information and citing FOIA, s36 (effective conduct of public affairs) and s43(2) (commercial interests).

Mr Todd took issue with that response but on 4 April 2022, following an internal review, the University reaffirmed its stance.

On 11 April 2022, Mr Todd complained to the Respondent (‘the Commissioner’) about the way in which his request for information had been handled. An investigation followed.

By a decision notice dated 12 November 2022 the Commissioner determined that the exemption relied under s43(2) was engaged and that the public interest favoured maintaining the exemption. In those circumstances he did not judge it necessary to deal with the s36 arguments.

By a notice of appeal dated 28 November 2022, Mr Todd challenged the Commissioner’s adjudication.

The Commissioner resisted the appeal in his response dated 13 December 2022, which addressed both s43(2) and s36.

To that Mr Todd served a reply dated 17 December 2022.

The dispute came before us in the form of a ‘remote’ hearing, held by Cloud Video Platform. The Commissioner had said that he was content for the appeal to be determined on the papers, but Mr Todd had exercised his right to ask for a hearing. The Commissioner did not attend the hearing, being content to rely on his written case. We were satisfied that it was just and in keeping with the overriding objective to adopt this procedure.

FOIA, s1 includes:

FOIA, s36 includes:

In Information Commissioner v Malnick & ACOBA [2018] UKUT 72 (AAC) the Upper Tribunal cited with approval earlier case-law to the effect that, depending on the particular case, conflicting opinions may both be reasonable [47] and also confirmed that ‘reasonable’ in the s36(2) context means substantively reasonable and not procedurally reasonable [56].

By s43(2), information is exempt if its disclosure under FOIA ‘would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).’

In assessing prejudice and/or the risk of prejudice for the purposes of s43, we direct ourselves in accordance with the decision of the FTT in Hogan and Oxford City Council v ICO (EA/2005/0026), which proposes three questions. First, what interest (if any) is within the scope of the exemption? Second, would or might prejudice in the form of a risk of harm to such interest(s) that was ‘real, actual or of substance’ be caused by the disclosure sought? Third, would such prejudice be ‘likely’ to result from the disclosure in the sense that it ‘might very well happen’, even if the risk falls short of being more probable than not? (Hogan is, of course, not binding on us but it draws directly on high authority (Footnote: ²) and has been specifically approved by the Court of Appeal: see Department of Work and Pensions v IC [2017] 1WLR 1.)

If a qualified exemption, such as any under ss36 or 43, is shown to apply, determination of the disclosure request will turn on the public interest test under s2(1)(b), namely whether, ‘in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information’. The proper approach, as explained by the Upper Tribunal in APPGER v IC [2013] UKUT 560 (para 149) is:

The relevant date for the purposes of applying any public interest balancing test and, it seems, determining the applicability of any exemption, is the date on which the request for information was refused, not the date of any subsequent review: see Montague v ICO and DIT [2022] UKUT 104 (AAC), especially at paras 47-90.

Where more than one exemption is relied upon, each must be considered and balanced separately. It is not permissible to ‘aggregate’ public interests under different exemptions when applying the public interest balancing test: see Montague, paras 15-46.

The appeal is brought pursuant to the FOIA, s57. The Tribunal’s powers in determining the appeal are delineated in s58 as follows:

Given the way in which the Commissioner had approached the matter, Mr Todd gave attention principally to the exemption under s43(2). He did not strongly dispute that a commercial interest was engaged, in the cases of both the University and LMA. But he submitted that the public interest clearly favoured disclosure. Publication of the external examiners’ reports would serve the general public interest in openness and transparency in matters pertaining to education and the more particular public interest in enabling students to make well-informed choices between higher education options. The grounds relied on by the University for resisting disclosure were feeble and, in some instances, specious. In particular, the point that reports and third party providers’ responses are routinely disclosed by the University to students who have enrolled on the relevant courses misses the point that such disclosure will be too late to inform a considered choice of course. And the Commissioner’s reliance on the availability within the public domain of other sources of information was misplaced. External examiners reports were unique in conveying independent, skilled, professional assessments of course content and delivery.

As for s36(2), Mr Todd pointed out that there is no evidence that the ‘Qualified Person’ holds, or at the time of the request held, the opinion on which the University relies. Moreover, the stated opinion, if held, is perverse and unreasonable. Disclosure of the external examiners’ reports would not inhibit free and frank provision of advice. There is no rational basis for supposing that examiners would ‘water down’ their assessments or express themselves in a more guarded way if they knew that their reports would be published. Nor would disclosure of the reports, or any response from a third party provider, inhibit the free and frank exchange of views for the purposes of deliberation. Under the University’s External Examiner Policy (a copy of which was in the bundle before us) the report is prepared some time after an ‘Initial Feedback’ meeting, which takes place at Award Boards. That meeting is the occasion for free and frank exchange of views and there is no reason why a practice of publishing the reports would inhibit frank communication when the feedback is delivered and discussed. In the circumstances, Mr Todd argued that neither exemption under s36(2)(b) was engaged.

Even if the Tribunal found the exemptions (or either of them) engaged, Mr Todd submitted that the public interest favoured disclosure. His arguments under s43(2) were repeated.

The main arguments of the Commissioner on s43(2) were as follows. There is fierce competition between Universities for students. The incomes of all higher education bodies depend on headcounts. Accordingly, publication of external examiners’ reports would be liable to prejudice any University’s commercial interests. Therefore the exemption is engaged.

Turning to the public interest, the Commissioner submitted that the balance favoured maintaining the exemption. Healthy and fair competition between Universities served the public interest and granting Mr Todd’s request would give other Universities, and third party providers competing with LMA an unfair advantage. Such disclosure would be to the whole world and would not entail any duty of confidence. Undermining fair competition would be liable to reduce the choice available to students. Moreover, performance information was available to prospective students on Universities’ websites and on the Higher Education Statistics Agency website.

As to the exemptions under s36(2)(b), the Commissioner contended that the ‘qualified person’ was properly identified as the Vice-Chancellor and that the opinion set out in the University’s message of 2 March 2022 was, in the circumstances, reasonable.

Rightly, Mr Todd did not seek to advance a positive case on whether the exemption under s43(2) was engaged. With the advantage of having seen the disputed information, we are persuaded that it is. We are not in a position to say more in these open reasons, since doing so would be liable to reveal the nature and tenor of the external examiners’ judgements. In a short confidential annex we explain our thinking in a little more detail. (Footnote: ³)

On the public interest, we have reached the clear view that Mr Todd’s case is to be preferred. Our reasons are these. First, we agree with the Commissioner that healthy competition between educational institutions is in the public interest. But that competition is best served where the qualities and weaknesses of course content and delivery at different establishments are publicly documented. In this way, strong reputations may be built and maintained on a sound evidential basis and, where necessary, hard lessons may be learned and changes for the better implemented. The overall effect of publication should, we think, promote higher standards generally.

Second, disclosure would serve the strong public interest in transparency about standards in tertiary education, a sector of vital importance to our society.

Third, disclosure would also serve the narrower but no less important interests of those students faced with deciding on what University courses to apply for. The potential value of a recent assessment of any course by a skilled and disinterested professional is self-evident.

Fifth, we do not agree with the Commissioner that disclosure would put the University at an unfair disadvantage. Favourable assessments could not be the subject of complaint at all. And our starting-point would be that any critical comment would be likely to reflect a permissible, evidence-based view. There is nothing unfair about proper, measured criticism. Moreover, publication of the response of LMA would enable it to challenge or mitigate any criticism it judged unfair.

Sixth, nor do we see much force in the point that disclosure would discriminate against the University and LMA in the sense that (apparently) the prevailing practice is that external examiners’ reports and responses thereto are not published. There are two difficulties with this argument. The first is that it permits no change to the status quo. The fact (if it is a fact) that a practice self-evidently inimical to the core presumption of freedom of information has become ingrained cannot be allowed to justify refusing what is otherwise a valid request. The second point is that, if our decision is followed, there would seem to be good reason to anticipate, no doubt over time, a reversal of the practice of higher education bodies to suppress publication of external examiners’ reports and responses thereto.

Seventh, in any event, the public interest in the fair and consistent treatment of institutions in the matter of publishing external examiners’ reports must be set against the (as we see it) weightier imperative of ensuring fair treatment of students. The choice of a University course is often a decision which sets a young person’s direction for life. No public interest can be served by perpetuating a state of affairs in which prospective students are denied key information about bodies and courses before they make their applications.

Eighth, we also share Mr Todd’s view that there is no mileage in the University’s argument that external examiners’ reports and responses are made available to students once they have enrolled. To state the obvious, the public interest lies in ensuring that key information is available to prospective students before they commit themselves to any particular course of study.

Is either exemption under s36(2)(b) engaged? We remind ourselves that it is for the public body to show that any exemption is engaged. This involves demonstrating two things: first, that the ‘qualified person’ has in fact formed an opinion that disclosure would, or would be likely to, cause one or both of the consequences referred to in s36(2)(b); and second, that that opinion was reasonable.

In our judgment, the first of those two elements is not made out. It is common ground that the Vice-Chancellor is legislatively appointed as the ‘qualified person’. But the section is not concerned with a role or title. It is concerned with the views of the flesh-and-blood person who holds the role or title. We have not been supplied with the name of the ‘qualified person’ at the date on which Mr Todd’s request was refused. We have been shown no statement purporting to have been written by the ‘qualified person’. We have not even been given any evidence from any third party purporting to explain how such third party came by an understanding as to what opinion the ‘qualified person’ held. The University’s response to the request dated 2 March 2022 (the author of which is not identified) merely recounted without explanation what was said to be the ‘qualified person’s’ opinion.

Accordingly, the Commissioner’s case under s36(2)(b) falls here, for want of evidence substantiating the alleged opinion in fact. But had we decided the factual question differently, we would have found that the stated opinion was unreasonable and that, on that ground, the exemption was not engaged in any event. As to s36(2)(b)(i), the University’s resistance to disclosure was explained in the message of 2 March 2022 in these terms:

In respect of s36(2)(b)(ii), the University’s message of 2 March 2022 states:

For these reasons, we conclude that, even if we are wrong to find that the opinions relied on are not shown to have been held by the ‘qualified person’, the exemptions under s36(2)(b) are not engaged because, to the extent that they were held, they were unreasonable.

Finally, we record that, had we found that the exemptions under s36(2)(b) were engaged (or either one of them was), we would have held in any event that the public interest in disclosure substantially outweighed the public interest in maintaining the exemption, for the reasons already given in relation to s43(2).

On all of the grounds stated, we conclude that the appeal has merit and must be allowed. The Commissioner’s decision was not in accordance with the law. The disputed information must be disclosed.