Edmund Willison v The Information Commissioner & Anor

Section 31 FOIA provides a qualified exemption subject to the public interest test in respect of information relevant to specific areas of law enforcement:

For the purposes of section 31(1)(g), a public authority’s “functions” are any power or duty exercisable by it for a specified purpose whether conferred by or under statute, common law or royal prerogative: Stevenson v Information Commissioner [2013] UKUT 181 (AAC).

The exemption is prejudice based. The harm that is identified must be real, actual or of substance and there must be a causal link between disclosure and that harm. “Would prejudice” means that it has to be more probable than not that the harm would occur. “Would be likely to prejudice” means that, even if the risk of harm occurring is less than 50 per cent, it must still be a real and significant risk.

The exemption is subject to the public interest test which means that, in all the circumstances of the case, the public interest in maintaining the exemption must outweigh the public interest in disclosing the information.

The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether a decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

We took account of an updated open bundle and a closed bundle. The open bundle is 1,155 pages long. We did not read the entire open bundle. We read the documents in tabs 1-4, the witness statements and any pages referred to therein, and any other pages to which we were referred in the hearing or in the pleadings, submissions or skeleton arguments.

We also took account of any pages that we were referred to in:

It was necessary to withhold the closed material from Mr Willison because otherwise the purpose of the proceedings would have been defeated. In accordance with its duties in Browning the tribunal reviewed the closed bundle and highlighted to UKAD in the hearing a number of closed redactions which it considered did not need to be withheld. As a result, and with the agreement of UKAD, further unredacted documents were released to Mr. Willison during the hearing. He was given time to consider those documents before making submissions. The unredacted sections have been included in an updated open bundle.

We heard open evidence from Mr Willison and, on behalf of UKAD, from Mr Wojek, Head of Science and Medicine at UKAD. We heard open and closed evidence from Mr Coffey, Director of Operations at UKAD.

We held two closed sessions. In the first we heard closed evidence from Mr. Coffey, in the second we heard closed submissions from Mr. Isenberg. The following written gists of both the closed sessions were provided to Mr. Willison during the hearing.

The amount of ABP testing done per sport is in the public domain, so Mr. Willison submitted that the release of the data in his request does not reveal anything about which sports are targeted under the ABP testing programme.

In relation to the risk of identification in sports where there are small numbers, Mr. Willison indicated that he would be happy to be provided with a figure under the heading ‘other sports’ to cover all those sports where there was a risk of identification. If this is not acceptable, he contests the assertion that any individual would be able to be identified.

Mr. Willison submitted that it is not correct to suggest that the requested data is akin to a ‘confidential report’ and Mr. Wojek accepted this in evidence.

Mr. Willison noted that the term ‘live’ data is used to support an argument that the withheld information should not be released, but any athletes with an APF will already have been alerted to that fact.

Mr Willison highlighted that other NADOs have released similar information, in particular SIA (the Australian equivalent), who gave the view that their figures corresponding to parts 4 and 5 of Mr Willison’s request (which were both zero) were not operationally sensitive.

Two international sports organisations have released the fact that an athlete has been charged under the ABP testing programme. WADA and the ITA have themselves released APF data which undermines UKAD’s reliance on their opinion.

Mr. Willison submitted that the letter from WADA (relied on by UKAD) misinterprets his request, and specifically declines to give an opinion on disclosure of the withheld information under freedom of information legislation in the UK.

Mr. Willison argued that if there is a risk of misinterpretation arising out of disclosure of the number of charges in circumstances where that number is less than the number of APFs, this could easily be explained.

In relation to any impact on deterrence, Mr. Willison submitted that athletes will already know if they have been subject to an APF.

In relation to the argument that results from the ABP testing programme are used to inform UKAD’s strategy, Mr. Willison submitted that traditional testing results are also used to inform UKAD’s strategy.

In relation to the public interest, Mr. Willison argued that it is important to see how an anti-doping agency functions and that UKAD has recognised public interest in transparency. He submitted that there is little transparency in relation to APFs compared to conventional testing. He submitted that the data could be used to compare UKAD’s operations by year and by sport and to understand how successful the ABP testing programme has been, particularly over a period when a previous investigation revealed that athletes with access to their ABP profile on ADAMS were able to calibrate a doping strategy to avoid detection.

Mr. Isenberg was asked to address the tribunal on the impact, if any, of Williams v ICO[2023] UKUT 57 (AAC) which appeared to the tribunal to support a narrow interpretation of sections 31(2)(b) and (d) FOIA.

Mr. Isenberg argued that the breadth of the exemption is guided by the breadth of the statutory functions of the public authority in question. He submitted that in Williamsthe narrow statutory functions of a coroner did not support a broad approach.

Mr. Isenberg argued that a reduction of the deterrent effect of the ABP testing programme would be likely to cause prejudice to UKAD’s functions for the purpose of ascertaining improper conduct (section 31(2)(b)). He submitted that UKAD’s function of identifying cheats includes the deterrence of cheating behaviour. Further, UKAD argued that one of the negative outcomes of disclosure of the withheld information is that it would enable athletes to inform their own doping strategy to avoid detection. He submitted that, on any view, that directly impacts on the ability of UKAD to ascertain improper conduct for purposes of section 31(2)(b).

Mr. Isenberg highlighted the information that is already in the public domain including:

Mr. Isenberg highlighted that the ABP data published by WADA is limited to the total number of ABP ADRVs per year and that it is not broken down by sport or with reference to the number of charges or ultimate sanctions.

Mr. Isenberg argued that WADA consciously chooses to publish less data in relation to ABP testing. They have access to the ABP data and could publish it if they wished. Although there was a suggestion in the USADA letter that WADA publishes charge data, Mr. Coffey’s evidence was that that was mistaken (which Mr. Isenberg argued is consistent with the WADA reports in the bundle).

Mr. Isenberg relied on a letter from WADA which states that WADA does not consider that there is any good or compelling reason from an anti-doping perspective to disclose the withheld information to the public and that, ‘where WADA does consider it important that data is publicly disclosed, this is required under the Code’. Mr. Isenberg submitted that this reflects WADA’s view there is a greater sensitivity to ABP testing data.

In terms of the prejudice relied on, Mr. Isenberg submitted the following are relevant:

Mr. Isenberg acknowledged that the withheld information would be known to the individual athlete, but they would not know the position in relation to other athletes. Further on a macro basis it is submitted that the release of the figures would enable athletes to look at trends and attempt to read UKADs testing strategy.

Mr. Isenberg highlighted four particular aspects of the claimed prejudice.

The impact on potential dopers in understanding the testing strategy and using it as an intelligence tool.

It is submitted that the data that emerges from the results management strand of ABP is fed into the strategy and intelligence, so you cannot release information about the former without prejudicing information about the latter.

Mr. Isenberg submitted that this must be understood against the backdrop of information already in the public domain including, importantly, the breakdown of UKAD’s ABP testing figures by year and by sport. This provides a mosaic context in which the withheld information could be used.

Mr. Isenberg submitted that disclosure of the disputed information would enable a doper or potential doper to look at the ‘likely doping’ and/or charging figures for any given year and sport and then look at the number of tests undertaken in those sports in the following year or years. He submitted that the potential prejudice is obvious - it demonstrates clearly how this information could be used as a crucial data point by an ill motivated athlete as a window into UKAD’s testing strategy. Athletes can then attempt to use this data to predict future testing or use future knowledge of ‘likely doping’ findings to predict future testing and to use this as a guide to their own doping activities.

Deterrence

Mr. Isenberg submitted that the complexity of the ABP testing programme and the fact that many athletes are not aware of exactly how it works, or even if they were subject to the programme, is an important part of its deterrent effect. The more the curtain is pulled back on the programme, the greater the confidence given to athletes who wish to try and evade it.

Mr. Isenberg submitted that this is an important point whether the relevant figures are low or high, because it is important for UKAD to take a consistent approach to disclosure of the type of information that is requested.

Potential for misunderstanding

Mr. Isenberg submitted that even accurate data can unwittingly be mispresented. The tribunal has to consider the information as it is and not whether the prejudice from disclosure could be mitigated by the disclosure of other information, particularly where the ABP testing programme would be impacted by more data being in the public domain.

Mr. Isenberg argued that there is a potential for misunderstanding against the backdrop of a testing programme that is small in size and that it is difficult to draw any meaningful conclusion from the withheld information.

Mr. Isenberg submitted that WADA shares those concerns.

Mosaic identification

As the request asks for a breakdown by sport, there is a risk of identification by a motivated intruder where the numbers for any sport are low. Although Mr. Willison has said that low numbers giving rise to a risk of identification can be put under the heading of ‘other sports’, that is not the way the request was put.

In relation to the international position Mr. Isenberg noted that Mr. Willison contacted a number of additional ADOs and would have included evidence from those ADOs in the bundle if they had disclosed the type of data in his request. Mr. Isenberg submitted that, despite his efforts, Mr. Willison has only identified two ADOs in support of his arguments in favour of disclosure, plus some examples of the publication of charges against athletes.

Mr. Isenberg submitted that there may be good reasons why a charge based on ABP testing may be published on a particular occasion.

He submitted that the position of SIA (relied on by Mr Willison) does not take the matter any further. They operate under a different regime and released the requested information outside of their equivalent of FOIA. SIA make the point twice that the information did not reveal testing strategies and that there are no operational sensitivities because no person or sport is identified, unlike in this request.

In relation to the Spanish NDO Mr. Isenberg argued that it is not a good example of best practice.

In relation to any inferences to be drawn from WADA’s statement about the Spanish situation, Mr. Isenberg argued that the information was already in the public domain and the best evidence of WADA’s view is as set out in its letter to UKAD.

UKAD acknowledged a clear public interest in transparency of its operations as a public authority and the regulator in the field of doping. It is submitted that, in this appeal, public interest in transparency must be weighed against the key public interest in the regulatory objective of preventing and identifying those who participate in doping to protect clean athletes and ensure a level playing field.

It is submitted that this particular information cannot be disclosed without harming UKAD’s regulatory function. The public interest in transparency is met through other means:

In response to a question from the tribunal, Mr. Isenberg confirmed that the total expenditure on traditional and ABP testing for the year 2022-2023 was roughly half of its total expenditure of £10.5 million.

The issues the tribunal has to determine are:

Our reasoning below is set out in the context of section 31(2)(b), but in the wider context of this appeal the analysis is materially identical for the purposes of section 31(2)(d). In its use of the withheld information, UKAD would only ascertain fitness or competence to compete in sport by ascertaining if a person is responsible for improper conduct. Accordingly our reasoning below applies equally and should be read as applying equally to section 31(2)(d) even where it does not explicitly refer to that section.

One of the figures requested by Mr. Willison was how many athletes’ ABP passports have been marked ‘likely doping by the three person Expert Panel. Under the Rules, if the three experts give a joint opinion of ‘likely doping’ after reviewing the ABP documentation package, an APF is reported. For that reason, we sometimes refer to the requested information as the number of APFs, although that is not the wording of the request.

The parties spent a significant amount of time in the hearing outlining the views, approaches or actions of other NADOs or WADA in relation to the publication of similar data. There was also a large amount of evidence in the bundle on this issue. We have found this to be of limited assistance in determining the relevant issues before us. This was, in part, because we have found that the exemptions are not engaged and did not go on to consider the public interest test. It is also for the following reasons.

To the extent that WADA is (or other bodies are) of the same view as UKAD that disclosure of the withheld information presents a risk of misrepresentation and a risk to the deterrent effect of the ABP testing programme, we have concluded below that this is not relevant to the question of prejudice for purposes of the exemptions claimed by UKAD. It is not necessary therefore to determine how much weight to place on WADA’s opinion or the opinion of other bodies.

We also observe, in any event, that the opinion of WADA in their letter of 17 October 2023 is subject to some qualifications. First, we have not seen any letter from UKAD by which WADA’s opinion was sought, or how that was framed. Second, WADA explicitly states that it ‘takes these points in general terms from its perspective as the global regulator for anti-doping, and not by reference to the applicable freedom of information legislation.’ To be clear, WADA takes no position as to whether the withheld information should (or should not) be disclosed under FOIA.

We are not assisted by the fact that WADA does not choose to publish the type of data in the withheld information in its quarterly or annual statistics. The question of whether this type of data should always be made public is a very different question to the one we have to answer.

In relation to evidence of disclosures (or non-disclosures) by other similar bodies, our role is not to decide whether information of this nature should always or should never be disclosed.

We are determining whether this particular information should be disclosed by this particular public authority in the light of the circumstances at the date of the response to the request.

Even if another body was responding to a request under FOIA (which, in the examples provided, they were not) they may have reached a different decision because, for example, they applied a different exemption, or took a different view on the public interest balance. It is for the tribunal to decide whether the FOIA exemptions are engaged and, if so, whether the public interest favours disclosure. In doing so we gain little assistance from the disclosure approaches of other bodies outside of the FOIA framework.

The first question for us to answer is what is the applicable interest within the exemptions relied upon. Here, the relevant interest is clear on the face of the exemptions.

In the case of 31(2)(b) the relevant interest is to protect a public authority’s ability to exercise its functions for the purposes of ascertaining whether any person is responsible for any conduct which is improper.

In the case of 31(2)(d) it is to protect a public authority’s ability to exercise its functions for the purpose of ascertaining a person’s fitness or competence in relation to … any profession or other activity which they are, or seek to become, authorised to carry on.

The next question is whether the purpose of ascertaining whether any person is responsible for conduct which is improper is one of the functions of UKAD. ’Ascertaining’ connotes some element of determining or deciding whether a person was responsible for improper conduct.

A function is a power or duty exercised by a public authority for a specified purpose, whether conferred by or under statute. It includes only those functions assigned to the public authority and does not also include anything conducive or incidental to those functions (DVLA v Information Commissioner[2021] 1 WLR).

UKAD is responsible for ensuring sports bodies in the UK are compliant with the World Anti-Doping Code and International Standards through the implementation and management of the UK’s National Anti-Doping Policy and the Assurance Framework.

UKAD’s strategy states:

We accept that UKAD’s functions include, inter alia, detecting and investigating doping and issuing sanctions. We accept that doping falls within improper conduct and that UKAD exercises these functions for the purpose of ascertaining whether individuals are responsible for improper conduct.

We note at this stage that UKAD also has other functions and that not all of its functions are exercised for the purpose of ascertaining whether individuals are responsible for improper conduct. Many of its functions are exercised, for example, for the purpose of deterring rather than detecting wrongdoing. We deal with this in more detail below.

The next question is whether the claimed prejudice relates to the applicable interest (or purpose).

In determining this question, we do not accept Mr. Isenberg’s submission that the provisions of section 31 should be construed broadly. Both DVLAand Williams v ICO [2023] UKUT 57 (AAC)make clear that the statutory drafting suggests the opposite (para 37-38 of Williams):

Judge Church in Williams goes on in paragraph 38 to consider the specific statutory context of an inquest and notes that it defines the purpose of any inquest in very narrow terms. We do not accept Mr. Isenberg’s submission that it was only this narrow statutory context which led to Judge Church’s conclusion that section 31(2) FOIA should not be construed broadly. It is clear from the extract cited above that Williams and indeed DVLA make a broader point based on the way in which section 31(2) is drafted. We are bound by and, in any event, agree with this.

It is clear from Williamsthat this focussed approach applies not only to the question of whether a body has the relevant function for the purposes of section 31(1)(g), but also to the question of whether the claimed prejudice relates to the purpose for which the function is exercised under section 31(2)(b):

In interpreting section 31(1)(g) we take the above into account and we note the importance of focussing on the specific wording of the specific purposes listed under section 31(2) when considering the scope of the exemption and the interests protected.

In passing we note that the Commissioner in the decision notice refers to the wrong part of his guidance when setting out what is covered by section 31(1)(g)/31(2)(b), which might create the impression that the exemption is broader in scope. The extract from the Commissioner’s guidance set out in paragraph 14 of the decision notice states:

This is an extract from the Commissioner’s guidance on section 31(1)(a) (prejudice to the prevention or detection of crime) not section 31(1)(g) or 31(2)(b).

While section 31(1) includes other categories of exemptions aimed at avoiding prejudice to detection and prevention of crime, the wording of section 31(1)(g) read with section 31(2)(b) (or (d)) cannot in our view be read to include prejudice to the ‘prevention’ of improper conduct. In the tribunal’s view, prejudice to the exercise by a public authority of its functions for the purpose of preventing conduct which is improper is not within the scope of sections 31(1)(g) and 31(2)(b) or (d). Section 31(2)(b) is squarely focussed on the purpose of ascertaining whether any person is responsible for any conduct which is improper (and (d) on the purpose of ascertaining a person’s fitness or competence).

Although UKAD has functions which it exercises for the purpose of preventing doping or deterring people from doping, any prejudice to the exercise of its functions for those purposes does not fall within section 31(1)(g) and 31(2)(b).

Any negative impact on the deterrent effect of the ABP testing programme might result in more people doping, but it would not affect UKAD’s ability to ascertain or detect those who were doping, or to carry out investigations into whether people were doping or to issue sanctions etc. In other words, it would not prejudice the exercise by UKAD of its functions for the purpose of ascertaining whether any person was responsible for any conduct which is improper.

Mr. Isenberg argued that UKAD has broad powers, including for example enforcement, education and testing. He submitted that UKAD’s powers in identifying cheats include the deterrence of cheating behaviour. We disagree. Deterrence is not part of the process of identifying (or ascertaining) cheats. It is intended to reduce the number of cheats.

In Mr. Coffey’s statement at para 38 he says:

We do not accept that this brings prejudice to the deterrent effect of ABP testing within the remit of the exemption in section 31(1)(g) read with section 31(2)(b). Even if UKAD’s concerns about a reduced deterrent effect are legitimate, we do not accept the proposition that the existence of more cheats would make it more difficult to ascertain whether any person is responsible for any conduct which is improper.

In any event we are not persuaded that there is any basis for finding that any increase in doping caused by disclosure of the withheld information would be of such an extent that it would be likely to cause prejudice to UKAD’s ability to operate its ABP testing programme effectively. The number of ADRVs from ABPs over the relevant period is already in the public domain and therefore athletes can already form a judgment about the likelihood of getting caught. Athletes are already informed if they are subject to a finding of ‘likely doping’, resulting in a logical understanding of whether their doping strategy has been detected or not.

For those reasons we do not accept that the assertion of a likely reduction in the deterrent effect of the ABP testing programme is a prejudice covered by section 31(1)(g) and section 31(2)(b) or (d).

In respect of each claimed prejudice, we must determine if the claimed prejudice relates to the applicable interest or purpose under section 31(2), if causality has been demonstrated between disclosure of the withheld information and the occurrence or likely occurrence of the prejudice claimed, and if the risk of prejudice in the event of disclosure is real and significant.

Before considering the claimed prejudices, we remind ourselves that the withheld information is made up of two figures. The first is the number of adverse passport findings (APFs) during the relevant period broken down by year and sport. The second is the number of athletes who have been charged, but not sanctioned, with anti-doping rule violations (ADRVs) for abnormalities in their ABPs during the relevant period.

As Mr. Willison helpfully identified, there are three possibilities:

There is additional reasoning on this issue set out in the closed annex.

As set out above, any prejudice to the exercise of UKAD’s functions for the purposes of prevention (rather than detection) of anti-doping rule violations does not, in our view, fall within the exemption. A set out above, we are not persuaded that there is any basis for finding that any increase in doping caused by disclosure of the withheld information would be of such an extent that it would be likely to cause prejudice to UKAD’s ability to operate its ABP testing programme effectively. A risk of an increase in the number of doping athletes does not, in our view, fall within the exemption.

In its response UKAD puts the argument on misinterpretation like this:

We are not persuaded that a skewed public understanding of the operations of the ABP testing programme would or would be likely to prejudice the relevant interests for purposes of section 31(2), because we are not persuaded that it could have any impact on UKAD’s ability to ascertain if athletes have committed ADRVs. The prejudice asserted here is not a prejudice relevant to the purpose or interests protected by section 31(2). This aspect is explained further in closed.

Further, we are not persuaded that public lobbying or pressure to alter the ABP testing programme is a prejudice relevant to the purpose or interests protected by the exemption in section 31(2). We are not persuaded that public lobbying and pressure could cause prejudice to UKAD’s ability to ascertain if athletes have committed ADRV’s.

We note that in Williams Judge Church held, in relation to IOPC proceedings, that ‘the undermining of public confidence in proceedings is not the same as undermining the proceedings themselves’ (at para 51). In our view the same point applies in this appeal to the extent that UKAD seeks to rely on concerns about public misunderstanding or misinterpretation in order to withhold the requested information.

The historical and current data that is held on the ABP system may be ‘live’ in the sense that it is used to inform an overall (and ongoing) picture of an athlete and as intelligence to inform UKAD’s operations, but there is no impact on the effectiveness of this ‘live data’ by disclosing the number of APFs and the number of charges.

It is argued that the data would likely provide a key insight into UKAD’s testing strategy because ABP data is used by UKAD as an intelligence tool to inform its strategy. It is submitted that the withheld data is therefore likely to be of use to a would-be doping or doping athlete in seeking to take steps to avoid detection.

We accept that this claimed prejudice relates to the applicable purpose and interests referenced in the section 31(2) exemption. If the information could be used by athletes to take steps to avoid detection, this would present a real and significant risk to the process of ascertaining whether persons are responsible for conduct that is improper.

However, we are not satisfied that the particular data in question could be used to assist athletes to avoid detection. Some of our reasoning on this issue is set out in closed.

First, any athlete who is already subject to ABP testing will already know whether or not they have personally received an APF, because they would have been notified by UKAD if that was the case.

UKAD submitted that one of the benefits of the ABP testing programme is that it is opaque and that many athletes would not necessarily be aware that they would have been notified by UKAD if they did have an APF.

However, the fact that athletes are informed of an APF is information that is in the public domain and easily accessible on UKAD’s website. Under rule 1.3.1 it is the personal responsibility of each athlete to acquaint themselves with the Rules, which make clear that athletes will be notified of an APF.

In terms of informing an individual whether they themselves have been subject to an APF, the disclosure of the requested information does not therefore release any new data into the public domain.

For those reasons, release of the withheld information would have no consequences for athletes knowing whether or not they personally have been subject to an APF.

Further, it is submitted by UKAD that the data that emerges from the results management strand of ABP is fed into the strategy and intelligence, so UKAD cannot release information about the former without prejudicing information about the latter.

Mr. Isenberg argued that this must be understood against the backdrop of information already in the public domain including importantly the breakdown of UKAD’s ABP testing figures by year and by sports. This provides a mosaic context for what can be done with the requested information.

Mr. Isenberg submitted that disclosure of the disputed information would enable a doper or potential doper to look at the likely doping and/or charging figures for sports in any given year and then look at the number of tests undertaken in those sports in the following year or years. He submitted that the data could be used by an ill motivated athlete as a window into UKAD’s testing strategy. They can then try and use this data to predict future testing or use future knowledge of likely doping findings to predict future testing and use it as a guide to their own doping activities.

We do not accept that the data could plausibly be used in this way. The reasoning for this conclusion is set out in the closed annex.

Mr. Isenberg submitted more broadly that the complexities of the operation and function of the ABP testing programme are unlikely to be fully appreciated by athletes or their support personnel, and that ‘the system is somewhat reliant on that aspect at least as a deterrent: the more athletes know, the greater information available to them to take steps to avoid detection.’

This data is very far from the type of data previously available to athletes from their real time ABP profile on ADAMS and which they were able to use to calibrate their doping strategy to avoid detection. Other than the use of the data in the way as described above, which we do not accept, it was not explained to us how the withheld information could enable athletes to take steps to avoid detection or how it could provide insight or intelligence into UKAD’s operations or strategy.

Although it was submitted that the ABP system relies on its complexity/opaqueness, the tribunal finds that the withheld information casts no material or useful additional light on its operation. We note that athletes have a personal responsibility under the UK Anti-Doping Rules in any event to familiarise themselves with the Rules.

We have rejected this argument for reasons set out in closed.

For those reasons we conclude that section 31(1)(g) read with section 31(2)(b) is not engaged and, for the same reasons, that section 31(1)(g) read with section 31(2)(d) is not engaged. We do not need to go on to consider the public interest balance.

We find that the Commissioner erred in concluding that the exemption in section 31(1)(g) read with section 31(2)(d) was engaged and the appeal is allowed.

UKAD has not relied on any other exemptions in relation to those parts of the request in issue in this appeal (it relied on section 41 and 43(2) in relation to other parts of the request) and therefore it is appropriate to issue a substituted decision notice requiring UKAD to disclose the withheld information to Mr. Willison.

The number of athlete ABP passports that have been marked likely doping by a three person Expert Panel in the relevant period is zero, for all sports and all years in the relevant period. The number of people charged with ADRVs for abnormalities in their Athlete Biological Passports in the relevant period is zero.

Mr. Isenberg submitted that although it is of some relevance that the figures are zero, this is not the whole story and it is submitted that the information should not be disclosed even if the figures were other than zero. Mr. Isenberg submitted that was partly due to what he called the ‘neither confirm nor deny’ reason i.e. that if any figures greater than zero were disclosed and only zero figures were not, it would be very easy for any person to infer what the figures were when they were not disclosed.

Mr. Isenberg made a related point in that he submitted that UKAD needed to take a consistent approach to disclosure of this type of information, so that they would only release the zero figures if they would also release positive figures.

Mr. Isenberg submitted that disclosure of the zero figures would give an insight into UKAD’s testing strategy. Because the testing figures are published, disclosure of the zero ‘likely doping’ figure and the zero charges figure would allow an individual to see the extent to which the absence of any likely doping findings or charges impacted UKAD’s testing for the following years. For example, whether the number of tests in cycling were increased or decreased following a zero result. Mr. Isenberg submitted that this could be used to predict future activity by UKAD and guide future behaviour.

Mr. Isenberg made two central closed submissions. First he submitted that there would be a substantial detrimental impact on the deterrent effect that the ABP programme has on potential dopers. Where the numbers are low or zero, athletes that are already doping are likely to continue or develop their doping practices believing that they would be unlikely to be caught. Those who are not already doping might be encouraged to start. UKAD also relies, in part, on the complexity of the programme and on athletes’ uncertainty and lack of knowledge about the precise workings of the programme as a significant deterrent. This view, Mr. Isenberg submitted, is shared by WADA who point out the risk attached to knowing that the number is low.

Mr. Isenberg accepted that individual athletes who are personally subject to ABP will already know that they have not been notified of any APF, but argued that the wider publication of the zero figures would tell others (including team mates or others who may be aware of doping activities within a particular sport) that nobody had been caught.

Second he submitted that there is a risk of misinterpretation of the information because the zero figures might give the erroneous impression that the ABP programme was not working, when its purposes go much wider than sanctioning as a result of doping. A number of ABPs have been reviewed since 2014 but there has never been a unanimous view of all three members of the expert panel leading to an APF. This could lead to pressure to substantially amend the programme.

The fact that UKAD wishes to act consistently is not relevant to the questions we have to answer. This is a prejudice based not a class based exemption. We are considering the particular data in this information request. We are not making any broader decision as to whether UKAD should always publish this type of data as a matter of course. If UKAD receives a FOIA request for similar data in respect of a year when the figures are not zero, it can determine, based on the relevant circumstances, whether an exemption is engaged and whether the public interest in maintaining it outweighs the public interest in disclosure.

Mr. Isenberg made what he termed an ‘NCND’ argument. In essence he stated that UKAD could not just release these figures when they were zero, because, if the figures were not disclosed in the future, the public would know that the figures were not zero. Therefore UKAD had to act consistently and either always release the figures or never release the figures.

We do not consider that this argument is premised on a correct construction of the requirements of FOIA. We have to consider whether the prejudice that is claimed by UKAD would or would be likely to flow from the release of the requested information, not from the release or withholding of other information. In any event, UKAD was unable to demonstrate what harm would or might flow from the public or athletes being aware that the figures withheld on another occasion were ‘not zero’.

We accept that there is a risk that people might assume that the zero figures mean that the ABP programme is not working. We accept Mr. Coffey’s evidence that, in addition to APFs and applying sanctions, the ABP programme has other aims and uses and therefore this would not be a fair assumption. But for the reasons set out in part in the open decision we do not accept that this is a prejudice to the interests in the exemption claimed.

Mr. Coffey in his closed evidence outlined what he saw as the possible ultimate consequences of a public misunderstanding of the efficacy and cost-effectiveness of the programme:

This prejudice to UKAD’s detection efforts, which in our view would fall within the scope of the exemption is said to arise as follows:

We are not persuaded on the basis of this evidence that there is a real and significant risk, as a result of the release of this data of a cessation or significant reduction to the APB programme (thus causing prejudice to UKAD’s function of ascertaining whether persons are responsible for improper conduct). In our view UKAD is well able to explain the full scope of its functions and programmes as well as the benefits and efficacy of the full scope of its functions and programmes (in respect of ABP testing and more widely) to the public and to those who make decisions about the funding of its programmes.

We do not accept, as Mr. Coffey asserts in his witness statement at paragraph 30, that knowing that there have been zero ‘likely doping’ results or APFs will confirm to current dopers that their doping practices are effective at avoiding detection. An athlete will be aware if they form part of the ABP programme. As Mr. Coffey states at paragraph 27 of his witness statement ‘[t]he athletes involved in the programme will of course have some understanding of how it operates…’.

As we set out in our open decision, any athlete who is subject to ABP testing will already know that they do not have an APF, because they would have been notified by UKAD if did. The fact that there have been zero ‘likely doping’/APFs overall adds nothing to their knowledge about their own situation. Current dopers who are part of the ABP programme already know have avoided detection because they don’t have APFs.

Mr. Coffey states at paragraph 32 of his statement that ‘[t]he difference with ABP data is that, because it is live data and an evolving longitudinal profile of the Athlete, if it were revealed that there had never been a suspicion raised against them, they would know that the entirety of their doping regime is effective and they would continue to dope or increase their doping activity’. Again, this is flawed. The withheld data does not ‘reveal’ to an athlete that they have not been the subject of an APF, because they would have been informed if they were.

Mr. Isenberg put the argument in a slightly different way. He argued that an individual athlete might know that teammates or other athletes were doping, but would not know if those others had been subject to an APF or had been charged with an ADRV. Releasing the ‘zero’ figures would inform that athlete that the other doping athletes had not been subject to an APF or charged with an ADRV despite the fact that they were doping.

Mr. Isenberg argued that if the athlete was following a similar or the same doping programme to those others it would incentivise him or her to continue doping or return to doping or to take up doping.

We are not satisfied that UKAD have established or explained any causative link between the release of this particular data and any increase in an athlete’s ability to evade detection. This is discussed in more detail below.

To the extent that disclosure might encourage athletes to start or continue doping, we have found in our open decision that any risk of a reduction of the deterrent impact of the ABP programme is not a prejudice to the relevant to the purpose or interests protected by the section 31(2) exemption.

In any event, the fact that there have been no sanctions arising from ABP testing in the relevant period is already in the public domain, as is the limited number of tests carried out, and so it is questionable to what extent, if any, the withheld data would add to any perception by athletes that they are unlikely to get caught through the ABP programme.

It is submitted by UKAD that because the data that emerges from the results management strand of ABP is fed into UKAD’s strategy and intelligence, UKAD cannot release information about the former without prejudicing information about the latter.

Mr. Isenberg submitted that this must be understood against the backdrop of information already in the public domain including importantly the breakdown of UKAD’s ABP testing figures by year and by sports. This provides a mosaic context for what can be done with the requested information.

Mr. Isenberg submitted that disclosure of the withheld information would enable a doper or potential doper to look at the ‘likely doping ‘and/or charging figures for any given year and sport and then look at the number of tests undertaken in that sports in the following year or years. He submitted that the data could be used by an ill motivated athlete as a window into UKAD’s testing strategy. They can then try and use this data to predict future testing or use future knowledge of likely doping findings to predict future testing and use this as a guide to their own doping activities.

We accept that it might be possible to gain some insight into the testing strategy of UKAD from a set of positive ‘likely doping’ or charging figures broken down by year and sport which varied year on year alongside the published testing figures similarly broken down. It is possible that dopers might be able to at least attempt to predict the volume of tests that might be carried out in the next year from such a dataset.

However, the figures relevant to this request are zero in every sport for each year in the relevant period. We do not accept that this data, combined with any publicly available data, can be used to provide any useful additional insight into UKAD’s testing strategy and how the decisions are made.

Because the annual ‘likely doping’ and charge figures are a constant zero for every year, it is not possible to infer what, if any, influence these figures had on the number of tests carried out in each sport during the following year. For example, in cycling in 2019 UKAD carried out 271 ABP tests. In 2020 it carried out 59 ABP tests. In 2021 it carried out 97. Knowing that the figure for ‘likely doping’ and charges was zero in all three years provides no insight into why the number of tests changed and certainly nothing that could provide any assistance to an athlete in avoiding detection. As the number is zero throughout the whole period, in our view it is impossible to use this as any useful guide to future behaviour.

The number of ABP tests carried out, broken down by sport, does give at least some indication of testing strategy. It shows which sports UKAD focusses on, and how many tests it has carried out in previous years. This is already in the public domain. The additional knowledge of annual zero figures for ‘likely doping’ and charges adds no additional insight which could assist athletes in evading detection in the way alleged.

For those reasons we do not accept that there is a causative link between the release of the data and an enhanced ability to predict future testing and a consequent enhanced ability to evade detection.

Further, we do not accept that the release of these zero figures could give any other useful insight into the testing programme that might assist an athlete in evading detection.

There is no risk of mosaic identification because the figures are zero.