London Borough of Hillingdon v The Information Commissioner

The Council submitted that the information contained in the contract was, by its very nature, provided by Greenwich Leisure Limited (GLL) to the Council, initially by way of the tender exercise and now held in the subsequent Deed of Variation.

The Council relied on Browning v Information Commissioner[2014] EWCA Civ 1050 [39] where the Court of Appeal said that the FOIA applied to ‘information … obtained… through the medium of… applications’ and said that ‘it was fanciful to suggest that their confidentiality rights could be put in jeopardy by the way in which the public authority… process the information.’

The Council said that it was not in a position to ‘mutually agree’ factual circumstances about a contractor, which was, instead, provided by the contractor.

The Council noted clause 50.1.3 of the Deed of Variation which provides:

“parties shall keep confidential all Confidential Information received by one party from the other party… and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any Confidential Information”.

The Council noted that clause 50.1.2 of the Deed of Variation confirms information listed in Part 1 of Schedule 21 is “to be kept confidential for the relevant periods specified in that Part”.

The Council submitted that it was clear from the clauses of the contract set out above that disclosing the Deed of Variation without redaction would give rise to an actionable breach of confidence, because it would disclose information specifically designated as confidential and provided to the Council with an expectation that it would remain as such.

The Council said that complying with the decision notice would require the Council to knowingly commit a breach of contract, which is perverse.

The Council submitted that the commercial interests of GLL and, to a lesser extent, the Council, would be prejudiced by disclosure.

The Council said that GLL is a leisure provider and charitable social enterprise that operates a bespoke agency model as part of its contractual relationship with the Council.

The Council said that the information details commercial terms, including financial arrangements, pricing structures, performance expectations and operational methodologies. The Council submitted that disclosure would allow competitors to tailor their offer to undercut or replicate GLL, putting GLL at a competitive disadvantage.

The Council said that disclosure would expose information to competitors about GLL’s financial interests, legal structures and their unique operational framework that is not public knowledge.

The Council submitted that GLL’s specific operating model is proprietary intellectual property, developed following significant investment into extensive legal and strategic advice. Disclosure would allow competitors to bypass this through reverse engineering and replication.

The Council said that GLL regularly competes for contracts across the UK and disclosure would reduce their ability to compete fairly in a difficult market.

In relation to the Council’s interests, the Council said that disclosure would affect its ability to negotiate competitive terms with other service providers in future and potentially lead to reduced competition in procurement processes, as other providers may be dissuaded from tendering.

The Council averred that disclosure would cause prejudice and considered the likelihood to be significant, relying on Brighton and Hove City Council v Information Commissioner & Anor (EA/2016/0119) at [36] that it “is simply a matter of commercial reality that a company will exploit any valuable information as to a competitor’s business plan”.

The Council said that the threat of prejudice was evidently tangible and of substance.

The Council accepted that there was considerable public interest in ensuring transparency and openness about the identity of a local authority’s contractors and accountability as to how public funds are spent. The Council noted that a Voluntary Transparency Notice in respect of the Deed of Variation was published and the award was reported on the Council’s website and in other media outlets.

The Council submitted that the substantial commercial prejudice means that the public interest favours maintaining the exemption, relying on the Court of Appeal in Veolia ES Nottinghamshire Lts v Nottinghamshire County Council & Ors[2010] EWCA Civ 1214.

The Council produced an itemised list of the specific clauses and schedules within the Deed of Variation that it says were commercially sensitive, with brief reasons, prepared following discussions with GLL. The Council said that the list was primarily comprised of the items identified within Schedule 21 as confidential information, confidential by virtue of clause 50.1.2 but including some items confidential by virtue of clause 50.1.3.

Section 41 provides:

“(1)

Information is exempt information if –

(a)

it was obtained by the public authority from any other person (including another public authority), and

(b)

the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”

The starting point for assessing whether there is an actionable breach of confidence is the three-fold test in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, read in the light of the developing case law on privacy:

The common law of confidence has developed in the light of Articles 8 and 10 of the European Convention on Human Rights to provide, in effect, that the misuse of ‘private’ information can also give rise to an actionable breach of confidence. If an individual objectively has a reasonable expectation of privacy in relation to the information, it may amount to an actionable breach of confidence if the balancing exercise between article 8 and article 10 rights comes down in favour of article 8.

Section 41 is an absolute exemption, but a public interest defence is available to a breach of confidence claim. Accordingly there is an inbuilt balancing of the public interest in determining whether or not there is an actionable breach of confidence.

Section 43(2) provides:

“Information is exempt information if its disclosure under this Act, would, or would be likely to prejudice the commercial interests of any person (including the public authority holding it)”

‘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. 

Section 43 is a qualified exemption, 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:

“… when assessing competing public interests under FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This … requires an appropriately detailed identification of, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure of the relevant material in respect of which the exemption is claimed would (or would be likely to or may) cause or promote.”

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 to determine are:

We read an open and a closed bundle.

The closed bundle consists of the requested Deed of Variation. The Tribunal was satisfied that it was necessary to withhold the information in the closed bundle under rule 14.

The Tribunal sought further submissions from the Council which were received on 22 May 2026. We have taken these into account and, where necessary, their substance is set out in our discussion and conclusions below.

When considering whether the Council has established a causative link or that the prejudice would be likely to happen, we have to take account of the fact that disclosure has not yet happened. It is a hypothetical, future event. There is therefore unlikely to be concrete or direct evidence of the specific effect of this particular disclosure.

The Council asserts that disclosure would prejudice GLL’s commercial interests because it would allow competitors to tailor their offer to undercut or replicate GLL, which would put GLL at a competitive disadvantage. In particular the Council asserts that the information details commercial terms including financial arrangements, pricing structures, performance expectations and operational methodologies.

The Council further asserts that disclosure would prejudice GLL because it would reveal GLL’s operating model, which is not public knowledge, allowing competitors to bypass significant investment in extensive legal and strategic advice through reverse engineering and replication.

The Council asserts that GLL regularly competes for contracts across the UK in a difficult market, and already face constraints as a not-for-profit organisation delivering vital services to local communities. The Council asserts that the ability to compete would be undercut by the above matters and by potential reputational damage/undermined trust which could inhibit future partnerships with other public bodies.

The Council also asserts disclosure would impact on its own ability to negotiate competitive terms with other service providers or potentially result in a reduced competition, because reputational damage and loss of confidence may dissuade other providers from entering into a relationship with the Council through fear of commercially sensitive information being made public, which could lead to increased costs for the Council.

We accept that this amounts to prejudice to commercial interests that is real, actual and of substance.

The Council has not stated explicitly that section 43 is only relied on in relation to the information identified as commercially sensitive in the table on C27- C28 of the bundle, although we understand that to be the Council’s position. We have, in any event, considered all the information in the closed bundle together with the Council’s submissions and we find that the requisite causal link between disclosure of any information not in that table and the risk of prejudice has not been established. On that basis we find that section 43 does not apply to any information that is not in the table.

In relation to the information that is identified in the table as commercially sensitive, our conclusions are as follows.

We accept that there is a causal link between disclosure of the following information and a real and significant risk of the asserted prejudice in relation to the following information, and on that basis we accept that section 43 is engaged in relation to:

We accept that release of this information falls into the categories identified by the Council, i.e. financial arrangements, pricing structures, performance expectations and operational methodologies. We find that if this information was made publicly available, including to competitors, there would be a real and significant risk of that information being of value to competitors and put GLL at a disadvantage in a competitive market in which GLL regularly competes.

We also accept that there is a real and significant risk that disclosure of the entire unredacted deed, with no redaction of any sensitive commercial information, would lead to at least some reservations on the part of potential contractors albeit that we recognise that this is tempered by the incentives to contracting with Councils and the existing awareness of FOIA. We accept that disclosure of the current terms with the current contractor would lead to a real and significant risk of a detrimental impact on the Council’s negotiating position in any future tendering exercise.

In relation to the following information, which was included in the Council’s table of commercially sensitive information, we do not accept that section 43 is engaged. In relation to clause 3.1.5 and Schedule 1, the Council has accepted in its additional submissions that the information is not commercially sensitive. Clause 10.6 contains the name of an individual which does not in our view carry a risk of commercial prejudice which we have held can be withheld under section 41 below. Disclosure of the remainder of clause 10.6 does not carry any risk of commercial prejudice. In relation to the pages of the closed bundle headed ‘Schedule 1’ etc. these pages contain no substantive content and therefore disclosure of those pages carries no risk of commercial prejudice.

Where we have found that section 43(2) is engaged, we find that the public interest favours withholding the information. We have found that there is a significant risk of commercial harm to a company that regularly contracts with public authorities to provide important facilities to the public on a non-profit basis. There is a clear public interest in not distorting the market for the provision of contracted out Council services. There is additional weight from the risk of making contracting with the Council less attractive if an entirely unredacted contract was disclosed and from the impact on the Council’s negotiating position. That carries weight because of the potential impact on public money and public services.

On that basis we find that the risk of prejudice carries very significant weight in the public interest balance.

Against that we balance the clear public interest in transparency in relation to the use of public money. This has been satisfied, in part, by disclosure of the parts of the contract which are not commercially sensitive, and will be served to some extent by the Council’s obligation to publish accounts etc. Even taking that into account, we accept that there remains a clear public interest in full transparency in relation to the expenditure of significant sums of public money.

Overall, we find that the clear public interest in full transparency in relation to the expenditure of significant sums of public money is outweighed by the very significant public interest in avoiding the risk of prejudice outlined above.

We do not need to consider section 41 in relation to any clauses that we have decided can be withheld under section 43.

In relation to Clause 10.6 we accept that the name of the individual can be withheld under section 41 (and would, in any event, be exempt under section 40). The name was obtained by the public authority from another person in confidence and disclosure would constitute an actionable breach of confidence. There is no public interest in the name of the individual which could form a defence to an action for breach of confidence.

We accept that some of the withheld information can properly be considered as provided by a third party, because it has been provided by GGL. However, any information that is not exempt under section 43, has either not been categorised as commercially sensitive by the Council and GGL (as set out in the Council’s submissions) or we have rejected the assertion that it carries a real and significant risk of commercial prejudice.

The duty of confidentiality in the agreement between the parties is limited by clause 50 to commercially sensitive information designated in Part 1 of Schedule 21. We have determined that any substantive information listed in Part 1 of Schedule 21 is exempt under section 43. On that basis we find that there would be no actionable breach of confidence in relation to any other information, because it does not have the necessary quality of confidence and was not imparted in circumstance importing an obligation of confidence.

For those reasons the Council is not entitled to rely on section 41 to withhold any information except the name of the individual in clause 10.6.