Appeal Number: FT/EA/2025/0341
Information Rights
Heard on: 09 June 2026.
Judge Brian Kennedy KC
with specialist members: Emma Yates and Stephen Shaw.
Between:
Andrew Eburne
Appellant
and
The Information Commissioner
Respondent
DECISION: The appeal is allowed in part and otherwise dismissed.
Substituted Decision:
1. The Tribunal finds that the Public Authority was entitled to rely upon section 43(2) FOIA to withhold provider-level performance data at the time of the request. However, the Tribunal finds that the response to the request for total expenditure “to date” did not comply with section 1 FOIA.
2. The Tribunal therefore substitutes the following decision;
(a) The Public Authority was entitled to rely upon section 43(2) FOIA in respect of provider-level performance data.
(b) The Public Authority failed to comply with section 1 FOIA in relation to total expenditure “to date” and the Public Authority must issue a fresh response addressing that element of the request.
3. Subject to that substitution, the appeal is dismissed.
REASONS
Background:
This appeal arises from a request for information concerning the performance of training providers delivering HGV Skills Bootcamps.
The Department for Education (“DfE”) disclosed certain information, including a list of providers and a figure for expenditure, but withheld provider-level performance data relying upon section 43(2) FOIA.
The Information Commissioner upheld that refusal.
The Appellant challenges both the engagement of section 43(2) and the public interest balance.
Chronology:
7 December 2024 – FOI request submitted to DfE seeking provider-level performance data and funding information.
9 January 2025 – DfE confirms information held; invokes s.43 FOIA and extends time for public interest test.
6 February 2025 – Partial disclosure: provider list and a total spend disclosed - provider-level performance data withheld under s.43(2).
6 February 2025 – Internal review requested by Appellant.
6 March 2025 – Internal review outcome: refusal upheld.
7 March 2025 – Complaint to ICO under s.50 FOIA.
4 September 2025 DN issued: s.43 engaged public interest favours withholding.
12 September 2025 – Notice of Appeal lodged with Tribunal.
26 September 2025 – Commissioner’s Response filed (seeking dismissal).
28 October 2025 – Appellant’s Reply filed.
28 October 2025 – DfE elects not to participate further in the appeal.
Listing: hearing fixed for 09 June 2026.
Parties’ Positions: (Condensed)
Appellant:
Information is not inherently commercial (performance metrics).
Alleged prejudice is speculative and unsupported.
Strong public interest: significant public expenditure and accountability and value for money;
Less intrusive options (aggregation/redaction) not considered.
Procedural concerns about reliance on closed material.
The Appellant gave substantive and persuasive oral evidence at the hearing and advanced a principled case grounded in transparency and accountability. He indicated he has personal experience in the commercial field. It could be seen he has an interest in the nature of the commercial nexus and he explained the purpose of his request is to explore the public interest in the expenditure through the scheme generally in so far as it is value for money and worth such expenditure to the public purse, rather than any personal competitive bid. He maintains he could make a commercial bid without the information sought. He confirmed that he would be content with disclosure in aggregate and/or redacted form.
The Tribunal accept that the scheme involves substantial public expenditure, that there is a legitimate public interest in assessing provider performance and disclosure would contribute to scrutiny of value for money and we accept the bona fides of the appellant in this regard. We find these considerations carry significant weight.
The Commissioner argues (supporting DfE’s position):
Data can be used to derive per-learner costings, hence commercial.
Disclosure would give competitors strategic advantage in a competitive market.
Risk of prejudice is real and significant.
Public interest favours protecting fair competition and DfE’s negotiating position; Therefore, refusal was lawful.
The Commissioner did not attend the oral hearing and explained clearly that this was not through any disrespect to the Appellant or the Tribunal and provided a comprehensive written Response to the detailed grounds of appeal including reference to the investigation undertaken by the Commissioner with the public authority which also carried significant weight.
Issues:
The Tribunal must determine:
Whether section 43(2) FOIA is engaged;
(b) Whether disclosure would, or would be likely to, prejudice commercial interests;
(c) Whether the public interest favours disclosure; and
(d) Whether the response complied with section 1 FOIA in relation to total expenditure.
Other Matters:
The Tribunal note the Appellant’s concerns regarding reliance on closed material. The Tribunal is satisfied that it has been able to discharge its inquisitorial function, including consideration of such material where necessary, and that no procedural unfairness arises.
The Tribunal also notes an issue the Appellant suggested at the hearing in relation to benchmarking material which was made available via section 21 FOIA. The Tribunal on its own investigation, is satisfied that relevant material information was accessible, notwithstanding the Appellant’s difficulty in locating specific references.
Nature of the Information:
The withheld material comprises provider-level performance metrics, including completion rates, employment outcomes, dropout rates, and related measures.
Although such data may appear descriptive, the Tribunal is satisfied that in its form at the time of the request it has a clear commercial dimension.
When combined with publicly available information at that time relating to contract values and programme structure, the data in its withheld form was capable of permitting informed estimates of providers’ cost structures and/or delivery models.
Engagement of Section 43(2):
The Tribunal, unanimous in our findings have decided that the withheld information at the time of the request fell within the scope of “commercial interests” for the purposes of section 43(2).
We find disclosure would have been likely to enable competitors to derive commercially sensitive insights and to adjust pricing or bidding strategies accordingly.
We find the causal link between disclosure and prejudice at the time was direct and compelling.
We find that the risk of prejudice at the time was real and significant, and not merely speculative.
We find Section 43(2) was therefore engaged.
Form of the Information:
The Tribunal has considered whether the position would be different if the information were anonymised or aggregated. We accept that removal of provider identifiers would reduce the extent of commercial sensitivity. However, we must assess the exemption by reference to the withheld information as held at the time of the request as each case must be decided on its merits.
The information held was provider-specific and identifiable.
State of the Data at the Material Time:
A central issue in this appeal is the condition of the dataset at the date of the request.
The Tribunal find that the data was incomplete and provisional.
Providers were at different stages of delivery, outcome measures were subject to time lag, and the dataset constituted only a partial snapshot of performance.
In those circumstances, disclosure would have risked presenting a misleading or distorted picture of provider performance.
We accept that publication of such data could both overstate and understate performance depending upon the stage of delivery.
Public Interest:
The Tribunal recognises the strong public interest in transparency and accountability in the expenditure of public funds.
We accept that provider-level performance data is in principle, capable of contributing to scrutiny of value for money.
However, the public interest must be assessed in light of the information actually held at the material time.
Two considerations are decisive.
First, disclosure would be likely to prejudice commercial interests for the reasons already identified.
Secondly, the incomplete nature of the dataset means that disclosure would not have enabled reliable or meaningful scrutiny.
The Tribunal find that disclosure would have been liable to mislead rather than inform.
We have considered whether aggregated or redacted disclosure would alter that conclusion.
We find that, although such steps might reduce commercial prejudice, they would not cure the fundamental difficulty arising from the incomplete state of the data.
Even in aggregated form, disclosure would not properly or fairly have served the public interest in informed accountability.
Accordingly, we unanimously find that the public interest in maintaining the exemption outweighs the public interest in disclosure.
We add that, even if it were wrong as to the commercial nature of the information, we would nevertheless reach the same conclusion on the public interest, given the incomplete and potentially misleading nature of the dataset.
Conclusion on Section 43:
The Tribunal find that:
The information is commercial in nature in its present form;
(b) Disclosure would be likely to result in a real and significant risk of prejudice;
(c) The incomplete and provisional nature of the dataset materially weakens the case for disclosure;
(d) The public interest favours maintaining the exemption.
Section 43(2) was therefore correctly applied.
Section 36(4):
The Tribunal note that reliance was also placed by the public authority, in the alternative, on section 36(4) FOIA.
We find that, insofar as section 36(4) applies, it is confined to the statistical elements of the request and does not extend to the disclosure of the total taxpayer cost.
In any event, the Tribunal concludes that the same public interest considerations apply - namely, that in the circumstances prevailing at the material time the disclosure of incomplete and provisional statistical information would not serve the public interest.
Adequacy of the Response (Section 1 FOIA):
The request sought the total amount of taxpayer money spent on the scheme “to date”.
We find that the figure disclosed was confined to a particular funding phase and did not cover the full scope of the request.
On a proper reading, the request encompassed total expenditure incurred up to the date of the request.
The Public Authority therefore failed to comply with its duty under section 1 FOIA in respect of this element.
Disposal:
For the reasons set out above:
The appeal is dismissed in respect of the withheld performance data;
The appeal is allowed in part in respect of total expenditure and
A substituted decision is made as set out at paragraphs 1 - 3 above.
This determination turns materially on the state of the dataset at the time of the request. Different considerations may arise where information is complete, stabilised, and presented in aggregated or redacted form.
Brian Kennedy KC 15 June 2026.