British Business Bank Plc v The Information Commissioner & Anor

Ms Cross concedes ground 1.

Ms Cross argues that ‘role information’ should not be exempt under section 40(2) because BBB has provided no evidence that the role information meets the definition of personal data. In some cases a job title will not be sufficient to identify a specific individual.

Further Ms Cross argues that even if an individual is identifiable the privacy implications of releasing an employee’s job title may be quite different to those of releasing their name.

Ms Cross argues that the information is not subject to legal professional privilege and that the Commissioner did not take an unduly narrow approach to the legal advice limb of privilege. She asserts that the Commissioner was correct to conclude that references to lawyers taking steps or advice being provided in the future are not communications that form part of the continuum of legal advice. She submits that the information was not created for the dominant purposes of giving or obtaining legal advice about proposed litigation and litigation privilege would therefore not apply.

Ms Cross does not dispute the Commissioner’s findings in relation to names of recipients of FFS funding.

Ms Cross submits that BBB has not provided sufficient evidence to demonstrate that the relevant legal tests are met to engage section 43.

Further she submits that as a number of BBB’s main lending schemes have been closed for new applications since 31 March 2021 it cannot reasonably be argued that the disclosure of information will put off new customers.

Ms Cross submits that if section 42 or 43 is engaged the public interest favours disclosure.

Ms Cross argues that it is in the public interest to release fair and accurate information about a business even if this reduces the reputation of or the market confidence in a business, because that reputation/confidence was not well founded.

To the extent that any of the information relates to businesses that are in liquidation or in administration, the commercial sensitivity is likely to be lower.

In relation to the public interest in disclosure it is submitted:

BBB’s skeleton argument is intended to supersede its reply, so it is unnecessary to set out the reply in this decision.

The relevant parts of s 40 of FOIA provide:

Personal data is defined in s 3 of the Data Protection Act 2018 (DPA):

The definition of "personal data" consists of two limbs:

The tribunal is assisted in identifying ‘personal data’ by the cases of Ittadieh v Cheyne Gardens Ltd[2017] EWCA Civ 121;Durant v FSA[2003] EWCA Civ 1746and Edem v Information Commissioner[2014] EWCA Civ 92. Although these relate to the previous iteration of the DPA, we conclude the following principles are still of assistance.

In Durant, Auld LJ, giving the leading judgment said at [28]:

In Edem Moses LJ held that it was not necessary to apply the notions of biographical significance where the information was plainly concerned with or obviously about the individual, approving the following statement in the Information Commissioner's Guidance:

The High Court in R (Kelway) v The Upper Tribunal (Administrative Appeals Chamber) & Northumbria Police [2013] EWHC 2575 held, whilst acknowledging the Durant test, that a Court should also consider:

The data protection principles are set out Article 5(1) of the UKGDPR and s 34(1) DPA. Article 5(1)(a) UKGDPR provides: that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Article 6(1) UKGDPR provides that processing shall be lawful only if and to the extent that at least one of the lawful bases for processing listed in the Article applies.

The only potentially relevant basis here is article 6(1)(f):

The case law on article 6(1)(f)’s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows

Lady Hale said the following in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421 about article 6(f)’s slightly differently worded predecessor:

Section 40(3A) is an absolute exemption and therefore the separate public interest balancing test under FOIA does not apply.

Section 42(1) provides that information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is exempt information. Legal professional privilege covers both legal advice privilege and litigation privilege. Legal advice privilege covers confidential communications between lawyer and client for the purpose of giving or receiving legal advice or related legal assistance. Litigation privilege covers documents brought into being for the dominant purpose of litigation. The privilege extends to evidence of the content of those communications or documents.

S 42 is a qualified exemption, so that the public interest test has to be applied. It is recognised that there is a significant ‘in-built’ interest in the maintenance of legal professional privilege (DBERR v O’Brien and Information Commissioner[2009] EWHC 164), due to the importance in principle of safeguarding openness in communications between a legal adviser and a client, to ensure that there can be access to full and frank legal advice, which is fundamental to the administration of justice. The tribunal recognises that “although a heavy weight is to be accorded to the exemption, it must not be so heavy that it is in effect elevated into an absolute exemption” (DCLG v IC and WR [2012] AACR 43 at [44]) and the weight will vary according to the specific facts of each case.

We adopt the approach set out in DBERR at para 53:

Section 43(2) provides:

‘Commercial interests’ should be interpreted broadly. The ICO Guidance states that a commercial interest relates to a person’s ability to participate competitively in a commercial activity. 

The exemption is prejudice based. ‘Would or would be likely to’ means that the prejudice is more probable than not or that there is a real and significant risk of prejudice. The public authority must show that there is some causative link between the potential disclosure and the prejudice and that the prejudice is real, actual or of substance. The harm must relate to the interests protected by the exemption. 

Sections 42 and 43 are qualified exemptions, so that the public interest test has to be applied.

In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect.

The APPGER case gives guidance on how the balancing exercise required by section 2(2)(b) of FOIA should be carried out:

The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the 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.

The issues for the tribunal are as follows

In relation to the job/titles roles in dispute:

Is the following information covered by legal professional privilege:

Would disclosure of the following information be likely to prejudice the commercial interests of BBB and/or third-party delivery partners:

Where section 42 and/or section 43 is engaged, in all the circumstances of the case, does the public interest in maintaining the particular exemption outweigh the public interest in disclosing the information? This includes:

We read an open and a closed bundle.

The closed bundle consists of:

The tribunal was satisfied that it was necessary to withhold this information under rule 14.

We read open and closed witness statements and heard closed and open oral evidence from:

The following gist of the closed session was prepared by BBB, approved by the tribunal and provided to the second respondent during the hearing:

BBB submitted that where the job title or role uniquely identifies an individual (or would do so in combination with other information), then it also amounts to the individual’s personal data for the purposes of section 3 DPA 2018 as it directly and/or indirectly identifies them as having attended the relevant meeting.

For each of the relevant meetings, all of the job titles/roles that are unique are set out in Mr Lye’s CLOSED witness statement at PNL WS1/24 [CB/B8-B11], together with the individual holding the role.

Where the information does amount to personal data, then BBB submitted that precisely the same analysis that the Commissioner adopted at DN, paragraphs 2, 20-22 in respect of the names (which Helen Cross agrees is exempt - see Amended Response, paragraph 4 [OB/A39]) establishes that the job titles/roles are also exempt under section 40(2). Whilst Ms Cross has a legitimate interest in the disclosure of the requested information, BBB argued that it is not necessary for that interest that the job titles/roles be disclosed for the same reasons that it was not necessary to disclose the names. Accordingly, there is no lawful basis for disclosure and it is thus exempt under section 40(2).

As to the supposed difference as to the privacy considerations in respect of job tiles and names, BBB submitted that there is no material difference between the two sufficient to undermine the contention that the unique job tiles should be exempt under section 40(2). BBB submitted that disclosure of a job title on social media or in an email signature is not the same as disclosing the fact that a particular individual attended a particular meeting.

BBB now contends that section 42(1) is engaged in respect only of paragraph 4.8 (second sentence), paragraph 6.5 (final sentence), paragraph 6.8 (all), and paragraph 6.10 (second and final sentences) of the 8.4.21 Board Minutes, and paragraph 10.1 (all) and paragraph 10.3 (final sentence) in the 3.3.22 Board Minutes.

BBB submitted that the parts of paragraphs 4.8, 6.5, 6.8, and 6.10 of the 8.4.21 Board Minutes referred to above describe BBB’s then General Counsel (a barrister) informing the Board of BBB (i.e., the client) of the steps being taking in order to advise on legal risks and the client (i.e., the Board) discussing those steps.

It was submitted that although these passages do not themselves contain a report of legal advice, they describe a lawyer discussing with her client the steps that will be taken to provide advice and plainly fall within the continuum of communications relating to the giving and receiving of such advice and so were covered by the legal advice limb of LPP.

Furthermore, it was submitted that the steps referred to above were being taken in respect of reasonably anticipated litigation involving BBB. It contains a description of steps taken in respect of anticipated litigation and it was submitted that it is therefore subject to the litigation privilege limb of LPP.

BBB submitted that paragraph 10.1 (all) and paragraph 10.3 (final sentence) in the 3.3.22 Board Minutes describe BBB’s Deputy General Counsel (a solicitor) and then General Counsel discussing with the Board (as their client) matters that are properly subject to both the legal advice and litigation limbs of LPP.

In relation to the amended response of Ms Cross, it was submitted that Ms Cross seeks to rely on the Commissioner’s reasoning notwithstanding that the Commissioner no longer stands by that reasoning. BBB submitted that restricting the continuum of giving and receiving legal advice to the request for advice and the advice itself is too narrow.

BBB submitted that the evidence shows that there has been no waiver and Ms Cross has provided no basis to contradict that position.

It was submitted that the balance favoured withholding the information because:

BBB confirmed that section 43(2) is now relied on only in relation to:

BBB submitted that disclosure would be likely to cause prejudice to the commercial interests of BBB and its third-party delivery partners.

In respect of the commercial interests of BBB’s delivery partners it was submitted that the passages contain often frank and detailed discussion about identified or identifiable delivery partners (“DPs”), suppliers, borrowers or other third parties.

It was submitted that disclosure would involve disclosing commercially sensitive information about such third parties that would be likely to prejudice the commercial interests of such third parties, in particular, by:

It was submitted that where the prejudice would arise from the disclosure of frank internal discussions by the Board or its Committees about actual or potential DPs or suppliers, it would plainly be impractical and unrealistic to expect BBB to go to them and ask them what the effect of disclosure would be on their interests.

It was submitted that BBB’s own commercial interests would also be likely to be prejudiced by disclosure of the above information in three ways:

It was submitted that detailed evidence has now been provided and the Commissioner must be taken to consider this evidence to be sufficient. Ms Cross’ submission that the schemes are closed to new customers is of no relevance to the information BBB now seeks to withhold.

BBB submitted that there is a strong public interest in commercial interests not being prejudiced. That is particularly so in this case because, inter alia:

It was submitted that BBB already publishes significant amounts of information and substantial amounts of information have now been disclosed by BBB in response to the Request. it was submitted that this substantially serves to address the public interest in disclosure of the requested information.

In respect of the 3.3.22 Board Minutes, paragraphs 10.1 and 10.3 (final sentence) BBB relies on both section 42(1) and section 43(2). Whilst BBB’s primary submission is that the public interest in favour of maintaining each of those exemptions independently outweighs the public interest in favour of disclosing this information, in the alternative, it is submitted that the aggregated public interest under both exemptions would have that effect.

BBB submitted that the premise of the Amended Response, paragraph 27 that none of the information is incorrect, misleading or unreliable, is not sound. Mr Lye makes the point that some of the information is open to being misinterpreted with a potential adverse effect on the commercial interests of business partners. In any event, it was submitted that even the disclosure of accurate information that is not misleading may cause prejudice to a party’s commercial interests, which properly has to be considered in the public interest assessment.

BBB clarified that it has not sought to rely on section 43(2), in respect of the information now in dispute, on the basis of prejudice to the commercial interests of Greensill Capital Pty Limited, but on the basis of prejudice to BBB’s own commercial interests or those of other third parties.

BBB did not dispute the existence of the general public interest considerations of transparency. However, it was submitted that in respect of the specific information in dispute, those considerations are outweighed by the specific commercial prejudice, particularly given the limited extent to which those public interest considerations would be served by the requested further disclosure.

It was submitted that the assumption that the information relates to the distribution of funds through the COVID-19 support loans is very largely misplaced.

Ms Cross noted that it was for BBB to prove that the role information in this case meets the statutory definition of personal data. She argued that the privacy implications of disclosing an employee's job title are materially different from those of disclosing their name. Job titles are not inherently personal in the same way as people’s names. The disclosure of a job title, without an associated name, strikes a fair balance between transparency and personal privacy.

Ms Cross submitted that it was far from clear that the material forms part of the continuum of communications between lawyer and client for the purpose of giving or receiving legal advice. It was argued that mere references to future legal advice or steps that may at some future time be taken by the Appellant's legal team are insufficient to attract legal advice privilege.

In relation to litigation privilege Ms Cross submitted that the mere mention of potential future litigation is not enough - there must be a real likelihood of proceedings, not just a vague possibility. She submitted that even if some litigation was contemplated, BBB must show that the dominant purpose of the communications was to obtain advice or evidence in relation to that litigation.

Given the passage of time since the relevant meetings took place it was submitted that any litigation that the Bank had been seriously contemplating might well have been initiated or even concluded by now.

Ms Cross asked the tribunal to approach the claims with caution and ensure that they are supported by proper evidence.

Ms Cross argued that BBB has not provided sufficient evidence to demonstrate that the criteria are met in respect of the disputed information. She submitted that disclosure of information cannot conceivably deter customers from entering schemes which are no longer open for applications.

Ms Cross submitted that the BBB's arguments that disclosure would damage its relationships with delivery partners and impair its commercial interests are speculative and overstated. It was submitted that BBB’s sophisticated commercial partners will expect transparency and accountability. Ms Cross submitted that partners have strong incentives to continue accessing the Bank's support, making complete withdrawal unlikely. Suppliers will also have strong commercial incentives to continue working with the Bank which are likely to include exit penalties in contracts.

Ms Cross submitted that the public interest favoured disclosure for the following reasons:

Mr. Lye’s evidence was that [25]:

We accept on the basis of this evidence that it would be possible to identify a particular individual from each of the withheld job titles or roles. Even if only other employees of BBB were able to identify the individual, that is sufficient for the individual to be identifiable. On that basis we find that the information is personal data, because it relates to an individual who is identifiable indirectly from that data.

We accept that Mrs Cross is pursuing a legitimate interest. The legitimate interest is in transparency and accountability of decision-making by BBB.

We do not accept that processing is reasonably necessary for the purposes of those interests. Mrs Cross argued that it was reasonably necessary, because it sheds light on the people who were advising the board at the time key decisions were made – ‘who was in the room’ when those decisions were made.

However for the purposes of transparency and accountability of BBB’s decision making, it is, in our view, not reasonably necessary to know the identity of everyone who was present. In our view the identity of the decision makers suffices. The content of any advice or information provided by others present has, in the main, been released. It is not, we find, reasonably necessary to also know the identity of those who provided that advice or information for the purposes of transparency and accountability.

We agree with the Commissioner that it is not reasonably necessary to know the identity of those employees below Non-Executive Director (NED) or Senior Leadership Team (SLT) level.

Because we have found that processing is not reasonably necessary, we do not need to go on to consider whether the above interests are overridden by the interests or fundamental rights and freedoms of the data subject. We do not therefore need to consider Mrs Cross’ other arguments on this issue.

We find that BBB were entitled to rely on section 40(2) to withhold the job titles of individuals below Non-Executive Director (NED) or Senior Leadership Team (SLT) level, where those job titles would identify the individual concerned.

The first set of redactions are to the minutes of the board meeting on 8 April 2021. Elizabeth O’Neill, General Counsel to BBB was present at that meeting. We find that these redactions are of material that is covered by litigation privilege. Litigation privilege relates to communications at the stage when litigation is pending or in reasonable contemplation.

On the basis of Mrs Hoyland’s evidence and on the basis of the content of the withheld information, we accept that adversarial litigation was reasonably contemplated at the date of the meeting. Some of the redactions explicitly refer to the risk of litigation, for example that there were ‘very real risks’ of litigation.

We accept, on the basis of Mrs Hoyland’s evidence and on the basis of the content of the redacted sections, that the redactions are a record of BBB’s General Counsel setting out to their client the steps that will be taken to provide advice in relation to reasonably contemplated litigation. They are a record of communications that were made for the dominant purpose of that contemplated litigation.

The second set of redactions are to the minutes of the board meeting on 3 March 2022. Elizabeth O’Neill, General Counsel was at that meeting and so was Oonagh Hoyland, Deputy General Counsel. We find that these redactions are a record of confidential communications between a lawyer and their client. We accept on the basis of Ms Hoyland’s evidence that those present were either the client or those who would be expected to be present during confidential communications of that nature.

We accept that the communications took place in a relevant legal context. It is not possible to specify that legal context without revealing the withheld information but it is clear from the heading of paragraph 10 and the substantive redacted wording. On the basis of Ms Hoyland’s evidence we accept that it was anticipated that the matter discussed in those paragraphs might, in the future, lead to litigation, and that was why certain steps were being taken.

A broad indication of the legal context, without revealing the content of the withheld information, can be gleaned from the open section of the minutes, which refers to ‘incidents of potential disputes’ and refers to a proposal in the future of regular updates on matters such as ‘investigations, potential defaults and enforcement action’.

‘Legal advice’ is not limited to telling the client the law. It includes advice as to what should “prudently and sensibly be done in the relevant legal context” (Balabel v Air India [1998] Ch 317 CA at [330G]). Further, “there will be a continuum of communication and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.” (Balabel[330F]’

In Three Rivers DC v Bank of England (No 7) (HL(E)), at [111] Lord Carswell agreed with the following statement of principle, that “all communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client.”

In the redacted section of the March 2022 minutes, General Counsel and the Deputy Counsel were providing an update on a matter which was clearly part of their function as lawyers and involved the use of their legal skills if it was to be performed properly. The update was directly related to the performance of their professional duty as the client’s legal advisor, and it was information passed between lawyer and client as part of the continuum aimed at keeping both informed so that advice may be sought and given as required.

For all those reasons we are satisfied that legal advice privilege applies to the information redacted from the March 2022 minutes.

We find that section 42 is engaged in relation to both sets of minutes.

There is always a strong inherent public interest in not disclosing information that is covered by legal professional privilege.  In addition, in this particular case, there remained a live prospect of litigation at the relevant time. In relation to the redactions to the April 2021 minutes litigation was reasonably in contemplation, and in relation to the March 2022 minutes there was at least a risk of litigation. Overall, we find that there is a very strong public interest in maintaining the exemption.

We accept that transparency is important in relation to the operation of BBB because it is a publicly owned development bank. It provides guarantees that would have to be paid out of public funds and in some cases directly invests or lends public funds. We accept that the minutes are from period of time when the Bank oversaw the distribution and the investment of unprecedented levels of public money. We accept that transparency regarding BBB's internal oversight and decision-making processes may enable the public to feel confident their investment has been properly governed. We accept that concerns that were raised by the National Audit Office and Public Accounts Committee. We accept that there is a very strong public interest in transparency in relation to the BBB’s coronavirus support schemes. Finally we accept that it is relevant that BBB is not regulated either by the Financial Conduct Authority or the Prudential Regulation Authority.

We accept that the redactions to the April 2021 minutes do, to some extent, illuminate some of those issues. The redactions to the March 2022 minutes do so to a much more limited extent. Overall we find that the very strong public interest in maintaining the exemption outweighs the significant public interest in disclosure in relation to both sets of minutes.  

Section 43(2) is now relied on only in relation to:

We do not need to consider section 43(2) in relation to paragraph 10 of the board minutes of 3 March 2022 because we have found that BBB are entitled to withhold that information under section 42.

The asserted prejudice is to the commercial interests of:

In essence BBB argues that the redacted sections of the minutes contain frank discussions about the perceptions of BBB of those third-parties, disclosure of which would (a) damage the third party and (b) damage the trust in BBB of that third party and potential future delivery partners/suppliers.

There is no formal requirement to produce evidence from a third party in an appeal where the prejudice relied on is prejudice to a third party’s commercial interests. In cases such as this where the prejudice is said to arise, in part, from disclosure of the withheld information to the third party, it would defeat the purposes of the proceedings to disclose the information to the third party in order to seek their views on the potential prejudice flowing from disclosure. In the absence of any indication of the third party’s views there may, or there may not, be sufficient evidence to persuade the tribunal of likely prejudice to the third party’s commercial interests. It will depend on the evidence in any particular case. However there is certainly no rigid rule to the effect that a public authority cannot rely on prejudice to a third party’s commercial interests without evidence from that third party.

On the basis of (a) the content of the withheld information and (b) the evidence of Patrick Lye in paragraphs 35-38 of his witness statement we are satisfied that there is a causative link between disclosure and a real and significant risk of prejudice to the commercial interests of particular suppliers. Mr. Lye explains in his closed witness statement the detailed background to each redaction and we accept that evidence. We accept that these are frank discussions including information on the performance of suppliers, their significance to BBB, value for money, risks, and management of the relationship going forward (including potential termination of contracts).

We accept that disclosure of this information would be likely to adversely affect a supplier’s reputation to the extent that there is a real and significant risk of harm to their commercial interests because the market is likely to heed the views of BBB.

On the basis of (a) the content of the withheld information and (b) the evidence of Reinald de Monchy in paragraphs 17 of his witness statement we are satisfied that there is a causative link between disclosure and a real and significant risk of prejudice to the commercial interests of particular delivery partners. Mr. de Monchy explains in his closed witness statement the detailed background to each redaction and we accept that evidence. We accept that these are often frank and detailed discussions including, inter alia:

We accept that disclosure of this information would be likely to adversely affect a delivery partner’s reputation to the extent that there is a real and significant risk of harm to their commercial interests because the market is likely to heed the views of BBB.

Any current or potential suppliers or delivery partners will be aware of FOIA and BBB’s transparency obligations. However, if BBB had disclosed this particular frank discussion and critique of delivery partners and suppliers at the date of the response to the request, rather than relying on section 43 to withhold it, we accept that it would have been likely to impact on the trust that current and future partners had in BBB to handle commercially sensitive information. Although we are not satisfied that companies would be likely to refuse to work with BBB, we are satisfied that this loss of trust would be likely to impact on BBB’s ability to enter into contracts with suppliers or delivery partners on the best possible terms.

On that basis we accept that there is a causative link between disclosure and a real and significant risk of harm to BBB’s own commercial interests.

In relation to paragraph 4.6 of the 21 June 2021 audit minutes, on the basis of the content of the information and the evidence of Oonagh Anne Hoyland at paragraph 25(b) we accept that there is a causative link between disclosure and a real and significant risk of prejudice to the commercial interests of BBB. Ms Hoyland sets out a detailed explanation in paragraph 25(b) of the particular circumstances surrounding the discussion and why disclosure of this information would be likely to damage BBB’s commercial interest, and we accept this explanation.

There is a strong public interest in ensuring that BBB is able to perform the task that the government decided it should perform to the best of its ability. A large part of its role is to work with the financial services industry and encourage investment in small and medium enterprises, which are critical to the successful functioning of the UK economy. BBB is dependent on working with commercial partners to pursue its objectives. Further there is a strong public interest in the efficient management of public money.

For all those reasons, there is a strong public interest in not prejudicing its ability to reach the best possible deal in negotiations with suppliers and delivery partners and in avoiding other harm to BBB’s commercial interests. There is, in addition, a clear public interest in not causing damage to the commercial interests of those private companies who work with public bodies.

We accept that transparency is important in relation to the operation of BBB because it is a publicly owned development bank. It provides guarantees that would have to be paid out of public funds and in some cases directly invests or lends public funds. We accept that the minutes are from a period of time when the Bank oversaw the distribution and the investment of unprecedented levels of public money. We accept that transparency regarding BBB's internal oversight and decision-making processes may enable the public to feel confident their investment has been properly governed. We accept that concerns that were raised by the National Audit Office and Public Accounts Committee. We accept that there is a very strong public interest in transparency in relation to the BBB’s coronavirus support schemes. Finally we accept that it is relevant that BBB is not regulated either by the Financial Conduct Authority or the Prudential Regulation Authority.

The extent to which the above public interests are served by the redacted information is limited in relation to most of it, and moderate in relation to some of it. Much of the withheld information does not relate to the Covid 19 schemes and where it does, it contributes only a moderate amount to informing the public debate or illuminating the operation of those schemes.

The public interest in transparency is already met to some extent by the amount of information that BBB already publish and have published in response to the request.

BBB does not rely on damage to the commercial interests of Greensill Capital and therefore the fact that they are no longer in operation is irrelevant.

We accept that the information would provide insight into BBB’s view of suppliers and delivery partners. Whilst the withheld information does not provide a holistic and balanced assessment of a company’s performance, and some of the information might, taken alone, be misleading, we do accept that it does provide at least some information that would be of value to other companies, to other public authorities or to the marker in general in relation to the performance of the suppliers or delivery partners in question. That adds some weight to the public interest in disclosure.

Taking all the above into account we take the view that the public interest in disclosure is outweighed by the public interest in maintaining the exemption.