Case Reference: FT/EA/2025/0376
Information Rights
Before
JUDGE A. MARKS CBE
MEMBER K. GRIMLEY EVANS
MEMBER P. DEWAAL
Between
GEORGE GREENWOOD
Appellant
and
THE INFORMATION COMMISSIONER First Respondent
and
DEPARTMENT FOR BUSINESS AND TRADE Second Respondent
Representation:
The Appellant: represented himself
For the First Respondent: Helen Wrighton, Solicitor
For the Second Respondent: Michael Fry, Counsel
Decision: The appeal is allowed: a substitute Decision Notice is set out below.
Substitute Decision Notice:
To: Department for Business and Trade
Information Rights Unit
Old Admiralty Building
London SW1A 2DY
FOI@businessandtrade.gov.uk
Re. ICO Decision Notice IC-378867-C5N9 dated 6 October 2025
The Department for Business and Trade must, by no later than 35 working days after the date of promulgation of this decision (or, if later, the outcome of any appeal):
Comply with its duty under section 1(1)(a) FOIA by informing the Appellant in writing whether it holds information of the description specified in the Appellant's request and without any reliance on the exemption in section 43(3) FOIA; and
If it confirms that it holds information of the description specified in the Appellant's request, comply with its duty under section 1(1)(b) FOIA to communicate that information to the Appellant or issue a refusal notice in compliance with section 17 FOIA.
A failure to comply with this Substitute Decision Notice could lead to contempt proceedings.
REASONS
Introduction
This is an appeal against the Information Commissioner’s Decision Notice dated 6 October 2025 (IC-378867-C5N9) ("the Decision Notice") about a request for information made by the Appellant, Mr George Greenwood ("GG"), to the Department for Business and Trade (“DBT”).
The Information Commissioner ("Commissioner") upheld DBT’s reliance on section 43(3) of the Freedom of Information Act 2000 (“FOIA”), maintaining a neither confirm nor deny (“NCND”) position.
The parties consent to this appeal being determined on the papers, and the Tribunal is satisfied that it is appropriate to do so pursuant to Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
Background
The request relates to Bounce Back Loans (“BBLs”) issued to companies during the COVID-19 pandemic.
GG's request focused on two specific companies, J A M Financial Limited and Gym Live Health & Fitness Limited which, at relevant times, were owned or controlled by Mr James McMurdock, who has since been elected as a Member of Parliament.
Both companies were the subject of strike-off processes which were suspended by Companies House, giving rise to the inference that a third party—potentially a government department—had objected to their dissolution.
The request for information, internal review and responses
The key part of GG's request, dated 5 December 2024, was:
"Please could you confirm that:
The Department for Business and Trade opposed the application to strike these companies [J A M Financial Limited and Gym Live Health & Fitness Limited] off the Companies House register, as per filings both companies made on 11 Feb. 2023;
That it did so on the basis that each of these companies had a bounce back loan outstanding?"
DBT responded on 10 February 2025, neither confirming nor denying ("NCND") whether it held information falling within the scope of the request. It relied on section 43(3) FOIA on the basis that confirmation or denial would be likely to prejudice commercial interests.
GG sought an internal review, contending that a NCND response was unjustified given the narrow scope of the request and the public interest in transparency.
Following an internal review, on 3 April 2025 DBT informed GG that it upheld its original position.
The Commissioner’s investigation and Decision Notice
On 11 April 2025, GG complained to the Commissioner about DBT's handling of his request.
The Commissioner considered the scope of his investigation was whether DBT was entitled to rely on section 43(3) FOIA to give a NCND response.
In his Decision Notice dated 6 October 2025, the Commissioner accepted DBT's stance. He found that confirming or denying the existence of relevant information would be likely to prejudice the commercial interests of the companies concerned and that the balance of the public interest favoured maintaining the NCND position.
The Decision Notice relied heavily on the Tribunal's reasoning in the Spotlight case (Footnote: 1). It also cited the unchallenged Commissioner's decision (Footnote: 2) in another case which considered a similar request about a supposed COVID-19 Future Fund grant to a company with links to the former Prime Minister's wife: the public authority's NCND response was upheld.
Appeal to the Tribunal
On 14 October 2025, GG appealed against the Decision Notice to the Tribunal.
GG's grounds of appeal are, in summary, that:
the Commissioner erred in his assessment of potential prejudice to commercial interests under section 43(3) FOIA: the Respondents have failed to demonstrate that confirmation or denial would give rise to real and significant harm; and
the public interest in transparency outweighs any identified commercial harm.
GG seeks disclosure of the requested information.
The Law
It is not disputed that FOIA is the relevant statutory regime.
Duty to confirm or deny
Section 1(1)(a) FOIA requires a public authority to confirm or deny whether it holds information of the description specified in the request (‘the section 1(1)(a) duty’).
Information is exempt under section 43(2) FOIA if disclosure:
“... would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).”
According to Hogan v Information Commissioner [2011] 1 Infor LR 588 at paragraph 34, “would be likely to” means that the chance of prejudice being suffered should be “more than a hypothetical or remote possibility: there must have been a real and significant risk.” This approach was approved by the Court of Appeal in DWP v Information Commissioner [2016] EWCA Civ 785.
Section 43(3) FOIA provides that the section 1(1)(a) duty does not arise if, or to the extent that, compliance with that duty would, or would be likely to, prejudice the commercial interests of any person (including the public authority to whom the information request has been made).
Section 2 FOIA provides that where the section 1(1)(a) duty does not arise in relation to any information by virtue of the exemption in s.43(3) FOIA, the effect is that the section 1(1)(a) duty does not apply if in all the circumstances of the case the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information.
Role of the Tribunal
Under section 57 FOIA, GG is entitled to appeal to this Tribunal.
Under section 58 FOIA, the Tribunal must determine whether the Decision Notice was wrong in law or involved a misapplication of discretion.
The Tribunal may make its own findings of fact.
Evidence
The Tribunal was provided with an Open Bundle of 167 pages (including indices) comprising pleadings, correspondence, and witness evidence.
The evidence includes:
material relating to the two companies and their strike-off status;
witness evidence from Mr David Clarke, a counter-fraud expert; and
witness evidence from Mr Steven Greenwood on behalf of DBT.
The Tribunal considered all materials contained within the bundle.
Submissions
Summary of submissions on behalf of the Commissioner
The Commissioner relies on the reasoning set out in the Decision Notice which applied his guidance on the three-step criteria for prejudice-based exemptions such as section 43 FOIA as follows:
What is the actual prejudice that would (or would be likely to) affect the applicable interests?
confirmation or denial would reveal whether the companies:
I. held BBLs; and/or
II. had strike-off opposed on that basis.
this would expose commercially sensitive indicators of financial distress.
Is there a causal link between the confirmation/denial and the prejudice?
confirmation or denial could:
I. trigger speculation about financial weakness;
II. undermine customer/supplier/investor confidence;
III. affect valuation and funding prospects; and
IV. thus cause harm which is real, actual or of substance.
What is the likelihood of the prejudice?
the threshold of “would be likely” to cause prejudice was met in this case; as
there is a real and significant risk of harm to the companies’ commercial interests.
The Commissioner's position, in summary, is that:
arguments that the companies were inactive, or that the requested information was of limited commercial sensitivity, were considered but did not negate the risk of prejudice to commercial interests. The assessment of potential harm set out in the Decision Notice remains justified.
while acknowledging that the request concerns a serving MP and engages considerations of accountability in public office, these factors were given appropriate weight in the Decision Notice.
allegations or suspicions of misconduct must have a plausible evidential basis before materially strengthening the public interest in disclosure. Mere assertion or inference is insufficient. At the time of the request, there was no such plausible basis.
it was appropriate to have regard to earlier Tribunal decisions and decision notices of the Commissioner concerning BBLs. These were used as guidance only, with full recognition that each case turns on its own facts. Such authorities supported (but did not determine) the Decision Notice's conclusion that the public interest favoured neither confirming nor denying whether the information is held.
the competing public interest factors were properly assessed and, as set out in the Decision Notice, neither confirming nor denying whether the requested information is held would better serve the public interest.
Summary of submissions on behalf of DBT
In supporting the Decision Notice, DBT's submissions are in summary as follows:
confirming or denying whether DBT holds relevant information would itself disclose commercially sensitive information, namely whether there are outstanding BBL liabilities associated with the two companies: such indirect disclosure engages the exemption in section 43(3) FOIA.
confirmation or denial would be likely to prejudice the commercial interests of those companies (and their creditors and lenders) by:
indirectly confirming important information about the companies in question that would not otherwise be in the public domain: small and micro-companies do not have to publicly display their profit and loss accounts and thus turnover;
putting confidential financial information into the public domain. Neither company has filed that it is not trading. A public confirmation or denial is likely to damage their commercial interests and, if either company does have an outstanding BBL, also confidence;
affecting reputation and carrying stigma in needing to take out a BBL; and
impacting current or future commercial dealings, and loan repayment prospects.
maintaining confidentiality is important to:
preserve confidence in government support schemes such as BBL;
encourage businesses to continue engaging openly with government; and
prevent any precedent encouraging similar requests.
while acknowledging a public interest in transparency, including additional weight arising from Mr McMurdock's subsequent election as an MP, this is outweighed by:
the need to protect commercial confidence and sensitive financial information;
the potential broader harm to scheme integrity and business confidence; and
the risk of setting a precedent encouraging similar requests.
Summary of GG's submissions
GG submits that:
the request is narrowly focused on two identified companies, not a broad request for information about BBLs or government-backed support generally;
there is strong circumstantial evidence suggesting that the companies had outstanding public debt and that government intervention may have occurred;
the companies appear not to be actively trading and have failed to file recent accounts, limiting any ongoing commercial sensitivity; and
there is a compelling public interest in transparency given BBLs involve the use of public funds and, in this case, an individual who is now a Member of Parliament.
GG further relies on the evidence of a Mr David Clarke (a counter-fraud professional and former police officer), whose witness statement dated 8 November 2025 emphasises that targeted, evidence-based disclosure of the kind sought by GG's request - in circumstances suggesting potential misuse of public funds - serves an important anti-fraud and accountability function.
GG considers that his appeal grounds and the public interest in compliance with the section(1)(a) duty have not been properly understood or engaged with.
Discussion and decision
Findings of fact
The Tribunal first considered the relevant facts of this case. Based on all the evidence provided, the Tribunal made the following findings of fact on the balance of probabilities. None of these facts has been disputed.
At the time of the request in December 2024, in respect of J A M Financial Limited:
Mr McMurdock had resigned as Director on 26 January 2021 when another Director was appointed in his place. Before that date and since the company's incorporation on 31 October 2016, Mr McMurdock had been sole director and had significant control (owning 75% or more of the shares).
the company's Micro-entity Balance Sheet as at 31 October 2021 showed £50,000 creditors (i.e. amounts falling due after more than one year) against net current assets of £29,797; capital and reserves of £(14,076). The company had no employees.
the First Gazette notice for compulsory strike-off had been filed on 17 January 2023.
compulsory strike-off action had been suspended on 11 February 2023.
As regards Gym Live Health & Fitness Limited, at the date of the request:
Mr McMurdock had been sole director of the company since its incorporation on 9 January 2017 and remained so.
on 31 January 2021, accounts for a dormant company made up to 31 January 2020 had been filed at Companies House showing cash of £100 comprising issued share capital of 100 Ordinary Shares of £1 each.
on 30 October 2021, Micro-company accounts had been filed made up to 31 January 2021. These showed £20,000 creditors (i.e. amounts falling due after more than one year) against net current assets of £23,277; capital and reserves of £3,277. The company had no employees.
no accounts had been filed thereafter.
the First Gazette notice for compulsory strike-off had been registered on 3 January 2023.
compulsory strike-off action had been suspended on 11 February 2023.
No enquiries had been made of either company about any prejudice which would, or would be likely to, result to its commercial interests were DBT to respond to GG's request for information in compliance with the section 1(1)(a) duty.
Mr McMurdock was elected as the MP for South Basildon and East Thurrock on 4 July 2024.
The Tribunal took account of the Commissioner's guidance on section 43 FOIA and considered the following principles particularly relevant to this case:
generic assertions of commercial sensitivity are insufficient: evidence of actual prejudice is required;
where prejudice to the commercial interests of third parties is claimed, the public authority must usually consult the third party and evidence that party's actual concerns rather than rely on speculation;
timing is relevant: sensitivity may diminish though not inevitably;
financial interests are not necessarily equivalent to commercial interests: it depends on the facts; and
where an NCND response is claimed under section 43(3) FOIA, the same evidential and causal analysis is required as for the exemption in section 43(2) FOIA;
The Tribunal's decision in the Spotlight case is not binding on the panel. Moreover, given the disparity in context (in that case, the request was made in the early months of the COVID-19 pandemic and asked for the names of all companies that had received BBLs and other government-backed financial support), the panel does not regard that decision as persuasive on the facts of this case. The Commissioner's previous decision notice (mentioned in paragraph 14 above) made on 26 September 2023 is also not binding on the panel nor, given its timing and context, does the panel consider it persuasive in the context of the facts of this case.
To consider whether the Decision Notice contained any error of law, the Tribunal applied the above principles to the undisputed facts in this case, and found that:
no real, actual or significant prejudice to the commercial interests of either company would be likely to result from DBT responding to GG's request for information in compliance with DBT’s section 1(1)(a) duty (i.e. by confirming or denying whether DBT holds information of the description specified in the request), because:
in the absence of any evidence from the companies themselves, it was hard to identify any specific commercial interests: it was in the public domain that neither company had, by the date of the request, filed any accounts beyond 31 October 2021 (over three years prior to the request) and compulsory strike-off proceedings had been commenced against each company in January 2023, nearly two years prior to the request;
there was no evidence of any current or future commercial dealings by either company;
even if there were any such dealings, in the above circumstances, each company's customers, suppliers or investors would likely already have been aware that each company was, or at least had been, in financial difficulty or were unconcerned about the company's financial health;
the Tribunal therefore did not accept that confirmation or denial in response to the request would itself trigger speculation about either company's financial weakness; undermine customer/supplier confidence; or adversely affect their reputation;
the attempt compulsorily to strike off each company was in the public domain and that was itself potentially damaging to each company's commercial interests and reputation: there was no reason to believe that additional prejudice would likely flow from DBT confirming or denying whether it holds information within the scope of GG's request nearly two years later; and
accordingly, the Tribunal did not accept that the alleged likely harm to either company's commercial interests was "real, actual or of substance".
concerns that prejudice to borrowers' interests generally would likely arise if DBT responded to GG's request in compliance with the section 1(1)(a) duty - for example undermining confidence in government-backed schemes such as BBL and discouraging businesses from engaging openly with government - were unsubstantiated by any evidence.
similarly, particularly in the absence of any substantiating evidence, it is implausible - given the years (unlike weeks as in the Spotlight case) which had elapsed since the creation of the BBL scheme - that:
responding to GG’s request in compliance with the section 1(1)(a) duty would be likely to prejudice the commercial interests of companies which had benefited from government assistance during the COVID-19 pandemic; and/or
there would be any broader impact from similar requests.
given the narrow scope of the request - relating to just two "micro" companies - broader concerns about potentially undermining confidence in lender/customer obligations or confidence in businesses' financial health, future trading opportunities or reputations were not only unevidenced but also tenuous.
In short, the Tribunal was not satisfied that the three-step test for engagement of the section 43(3) FOIA exemption was met, i.e. actual prejudice to commercial interests; a causal link between prejudice and compliance with the section 1(1)(a) duty to confirm or deny; and the likelihood of prejudice.
Consequently, the Tribunal found that - contrary to the Commissioner's findings in his Decision Notice – the exemption in section 43(3) FOIA is not engaged.
Conclusion
For the above reasons, the panel finds that the Commissioner’s Decision Notice is not in accordance with the law.
Having found that the exemption in section 43(3) FOIA is not engaged, the Tribunal did not go on to consider the balance of the public interest applicable to that exemption under section 2(1) FOIA.
The appeal is allowed.
A substitute Decision Notice is set out at the start of this decision.
Signed:
Judge A. Marks CBE, First-tier Tribunal Judge Date: 29 May 2026