Decision: The appeal is Dismissed.
REASONS
Introduction to the appeal
- This is an appeal against the Decision Notice of the Information Commissioner ("the Commissioner") dated 25 April 2024, referenced IC – 266013 – L5P2.
- By his Decision, the Commissioner decided that Blaenau Gwent County Borough Council ("the Council") was entitled, pursuant to s31(3) of the Freedom of Information Act 2000 ("FOIA") neither to confirm nor deny whether it held information relating to the possible occupancy by the TVR Automotive Company ("TVR" or "TVRA") of the former Techboard factory ("the Factory"), in Ebbw Vale, Wales, and any consequent liability by TVR to pay business rates.
The Request
- On 25 August 2023, the Appellant sent this request ("the Request") to the Council:
"Under the Freedom of Information Act would you please provide information to the following questions concerning the TVR Automotive Car Company and the factory building that they are using. The building, formerly known as the Techboard Factory has been renovated by the Welsh government who own it. The chairman of TVR has stated in the press in the Daily Telegraph that this company occupies the building which makes it liable for business rates.
1. Have you been notified by the TVR Automotive car company that they now occupy the building?
2. On what date did TVR state that they had occupied the building from?
3. Confirm whether or not TVR has already informed you of their entry date for business rate purposes.
4. If TVR has occupied the building without having informed you, please detail the steps you will take to recover any outstanding monies due from business rates. ..."
Refusal of the Request
- On 25 September 2023, the Council refused the Request on the basis that the information requested was exempt from disclosure pursuant to s41 FOIA (information provided in confidence).
- On 25 September 2023, the Appellant informed the Council that its reasons for withholding the information he had requested were erroneous; he had not requested any confidential information: "The factory is publicly owned and paid for by taxpayers, that is to the say the building cost the taxpayer £5.7 million and another £6.2 million to renovate it. It is therefore a matter of public interest that the details requested are furnished without delay. ...". The Appellant said that he appealed the Council's refusal of the Request and had contacted the Commissioner with a complaint.
Appellant's Request to the Welsh Government
- Separately, but not unrelatedly, on 6 September 2023, the Appellant had made the following request to the Welsh Government ("the Welsh Government Request"):
"1. A Welsh Government spokesman stated the factory was completed on the 1st July 2022. Can you confirm if a lease or other agreement has been agreed or signed for this building and by whom?
2. Can you confirm if a lease or other agreement has been agreed or signed for this building and by whom?
3. Can you confirm the claim by TVR's chairman, Mr Leslie Edgar, that his company occupies part of the factory and if this is correct, from what date?
4. Can you confirm the claim by TVR's chairman, Mr Leslie Edgar, that the factory building is not yet complete and that remedial works are in progress?
5. On what basis is TVR occupying the factory?
6. Does TVR pay for this occupancy?
7. The Welsh Minister, in a written reply to an Assembly Member stated the factory refurbishment cost £6.2 million. If the claims by TVR at 4 above are correct, please provide the latest final cost of the work."
- On 4 October 2023, the Welsh Government responded as follows: "The refurbishment of the former 'Techboard' building at Rassau Industrial Estate was completed in July 2022. Remedial works were carried out to the premises and completed by early August 2023 (i.e. within the standard defects liability period). Mr Edgar's company, TVR, currently occupies a very small part of the 'Wing' building for B69 storage purposes under a 6 month 'contracted out' lease from 23rd May 2023 to 22nd November 2023 at a rent. The final cost of the refurbishment works was £7.58m."
Internal Review
- The Council treated the Appellant's objection as a request for an internal review. On 24 October 2023, the Council maintained its position.
The Commissioner's Investigation
- On 24 October 2023, the Appellant complained to the Commissioner. The Commissioner investigated.
- On 2 February 2024, the Council wrote to the Appellant confirming that it was unable to confirm or deny whether it held the information requested pursuant to s31(3) FOIA, because to do so would or would be likely to prejudice the prevention or detection of crime; confirming or denying whether it held information on any named company would inform the company in question whether it was under investigation which would hinder or damage the investigation or any further investigations of a similar nature. The Council accepted that there was a public interest in openness and transparency but considered that public interest in maintaining the exemption outweighed the public interest in confirming or denying it held the information requested.
The Decision Notice
- On 25 April 2024, the Commissioner issued his Decision Notice. He decided that for the Council to confirm or deny it held the disputed information could jeopardise the assessment and collection of taxes, such that the information was exempt from disclosure pursuant to s31(1)(d) FOIA. He recognised that there was a legitimate public interest in informing the public about whether the Council had appropriate policies and procedures in place to ensure that business rates were collected. He balanced against that the need to allow the Council to assess any possible breaches of the law and prepare any potential legal case, without premature disclosure of that information through FOIA to the world at large, and that there was a very strong public interest in ensuring that a court should be able to administer justice without this being undermined by premature publication of any evidence that may need to be presented. He acknowledged that while weight must be given to the general principles of accountability and transparency, greater weight must be afforded to the potential negative impact on the Council that confirming or denying the disputed information was held was likely to bring about. He concluded that the public interest in maintaining the exemption outweighed the public interest in disclosing the information, and that it followed that the Council was entitled to rely on s31(3) FOIA neither to confirm nor deny whether it held the disputed information.
The Appeal
- By Notice of Appeal dated 2 May 2024, the Appellant submitted that the Commissioner was wrong to have concluded in the Decision Notice that the disputed information was not in the public domain. To that end he referred to an online Telegraph article dated 20 October 2023, which he said stated that " ... TVR insisted it had already occupied a part of the factory. TVR chairman Les Edgar said "We have already occupied a part of the factory ... "". The screenshot of that article which was appended to the Notice of Appeal read as follows:
"Taxpayer-funded Welsh sports car factory still empty 12...
20 August 2023 – a Welsh Government spokesman said "TVR identified a Welsh Government-owned property in Ebbw Vale as its preferred location for its new car..."
- The Notice of Appeal also attached a screenshot of an online GB News article dated 21 August 2023, which read as follows:
"Taxpayer funded sports car factory still lying unused 12...
21 August 2023 – A £12million taxpayer funded sportscar factory is producing no cars a year after refurbishment. The site was expected to be occupied by TVR..."
- The Notice of Appeal further referred to what the Appellant described as a "full discussion in the forum of the Pistonheads website", which could be accessed by googling "TVR factory Wales". No evidence of that was appended to the Notice of Appeal.
- The Appellant submitted that the Commissioner's failure to identify such matters was a serious error given that consideration of what is in the public interest was a main tenet of the application of FOIA.
- The Appellant further submitted that the Commissioner's "excuse concerning tax collection is a non-starter as currently, the Welsh Ministers have a £500,000 investment in the car company so to suggest there may be evasion is nonsense."
The Commissioner's Response
- By Response dated 12 June 2024, the Commissioner submitted that the Telegraph article to which the Appellant referred was behind a paywall, and the only freely available text from the article was: "Taxpayer-funder Welsh sports car factory still empty 12 months after refurbishment." The Commissioner went on to say: "The sub-title is "British sports car brand TVR has yet to formally sign the lease". A caption below a picture of a car says " ... TVR insists it has already occupied a part of the factory, despite remedial works being ongoing ... " ... "As such, the only confirmation of occupation is from TVR's Chairman but even the limited accessible quotes above suggest that the journalist has some doubts as to the Chairman's claims."
- In relation to the Welsh Government's response of 4 October 2023 to the Welsh Government Request, the Commissioner noted that the response did not provide any details of whether the Council had been informed of TVR's occupancy, of business rates that may be due or what steps may be taken to recover those rates. Moreover, the Commissioner noted that the time at which to consider the engagement of any FOIA exemption is at the time that the FOIA request is made or by the time for statutory compliance with the request. In this case, the Request was made on 25 August 2023, i.e. before the Welsh Government's response of 4 October 2023. The Commissioner noted that the response did not indicate whether TVR occupied the Factory at the time of the Request.
- As regards the Appellant's reference to the Pistonheads forum, the Commissioner observed that the Appellant had not provided any details or evidence of what was on that forum but that even if he had, it was unlikely that it could be considered as an authoritative source of information in any event.
- The Commissioner submitted that he was not in any event concerned with whether there was information in the public domain which appeared to suggest that TVR was in occupation of the Factory at the time of the Request. Rather, he had been unable to locate any publicly available information at the time of the Request concerning the specific information the Appellant had requested.
- In relation to the application of s31(3) FOIA, the Commissioner submitted that it was unclear how the Appellant's submission that the fact that Welsh Ministers had a £500,000 investment in TVR made a nonsense of any suggestion there may be tax evasion.
- The Commissioner invited the Tribunal to dismiss the appeal.
The Appellant's Reply
- By Reply dated 21 June 2024, the Appellant provided further background information to arrangements between the Welsh Government and TVR which he submitted demonstrated the public interest. He submitted that the overriding aspect of his appeal centred on the public interest, and that TVR had occupied the Factory from 23 May 2023 to 22 November 2023 but failed to inform the Council.
Developments between November 2023 and July 2024
- After the Council's refusal of the Request, there were the following developments.
- First, on 21 November 2023, the Council's Revenues Visiting Officer emailed the Appellant following the Request to ask him to contact her "regarding occupancy by TVR." The Appellant says that the Officer was unaware of TVR's occupancy of the Factory and that she was pursuing TVR for business rates.
- Second, on 7 December 2023, an article appeared in the South Wales Argus reporting that the Welsh Government was looking for businesses other than TVR to take on the Factory, which meant that TVR was unlikely to be building their new model at that site, the deal with TVR having apparently fallen through.
- Third, in July 2024, the Public Accounts and Public Administration Committee of the Welsh Parliament considered, and subsequently published as part of its minutes, a report by the Auditor General for Wales of 12 July 2024 called "The Welsh Government's support for TVR Automotive Ltd". The stated purpose of the report was to review and report, by way of brief factual update, on that support in response to correspondence received expressing concerns over the risk to public funds.
- In summary, the Auditor General reported as follows: in March 2016, the Welsh Government announced its investment in TVRA which intended to create around 150 jobs in Ebbw Vale by producing TVR sportscars. The Welsh Government's initial support comprised:
a. a secured £2 million five-year loan. The loan, with an annual interest rate of 13%, was initially repayable by March 2021 and was a contribution to designing and constructing a prototype sportscar. The forecast was for 2,000 cars to be built by 2020; and
b. £0.5 million in equity shares, giving the Welsh Government an ownership interest in TVRA, in contrast to a simple grant. The individual share value at purchase was £5. The Welsh Government's shareholding represented 3.3% of TVRA's total value at the time. In the Welsh Government's 2022-23 financial statements, the shareholding is contained within the other financial assets balance, within the financial assets total; and was being carried at a historic value of £0.5 million.
- The Auditor General reported that in December 2017, the Welsh Government had entered into an agreement to take a head lease and refurbish a vacant factory in Ebbw Vale, with the expectation that TVRA would occupy it under a sub lease. In 2021, the Welsh Government subsequently bought the freehold interest in the Factory, still with the expectation that TVRA would occupy it. The purchase price of the Factory was £4.75 million (excluding VAT), with final refurbishment costs of £7.6 million and additional professional fees of around £5,000 associated with the purchase.
- The Auditor General reported that the Welsh Government had undertaken due diligence, imposed mitigating contractual conditions, and obtained a range of external advice. In December 2017, the Welsh Government decided to enter into an agreement to lease the Factory, which had been identified as a potential production facility for TVRA since 2016, with an expectation that the Welsh Government would undertake refurbishment, then expected to cost £4.5 million and to be completed by December 2018, which fitted with TVRA's then anticipated occupation under a sub-lease. Annual discounted rent of £56,000 would accrue in the meantime but only become payable when the Welsh Government took-up the lease.
- The Auditor General reported that in May 2019, the Welsh Government approved the selection of a contractor to undertake the refurbishment at an expected cost of £6.06 million, such costs having increased because of deterioration in the building's condition, cost inflation, materials price volatility, construction sector risk pricing and stricter building regulations. TVRA had not yet raised the capital necessary for starting production at the site but continued to express intentions to do so.
- The Auditor General reported that in August 2020 the Welsh Government informed TVRA that it would progress refurbishment with or without TVRA on board. In January 2021, the Welsh Government bought the Factory for £4.75 million. It expected that refurbishment would be completed in late 2021, which met TVRA's then indicated production timescales. On 29 September 2021, the Welsh Government granted a six-month licence to TVRA for a very small part of the Factory at a rent of £3,000 for the period, to store fibreglass moulds. At the end of this period, the initial licence would become a rolling six-month licence while discussions were ongoing regarding TVRA entering into a full lease for the Factory.
- The Auditor General reported that in April 2022, TVRA was still not in a position to begin production but, following additional private investment had acquired sufficient funds to repay the Welsh Government £4,329,100, representing the original £2 million loan amount and accrued interest. Upon that repayment, all warranties associated with the debt expired including the requirement for TVRA to establish its primary manufacturing operations in Wales. On 23 May 2023, the Welsh Government switched the licence of the small area of the refurbished Factory to a short-term lease to avoid the creation of a protected tenancy. The short-term lease ran until 22 November 2023, for which TVRA paid £3,125.
- The Auditor General reported that in the first half of 2021, TVRA secured third-party investment, which exceeded the private investment sum the Welsh Government had stipulated as part of its loan conditions. This funding enabled TVRA to repay the Welsh Government loan and accrued interest but was less than the estimated £40 million necessary for car production. In November 2023, the Welsh Government informed TVRA that it would seek alternative tenants for the refurbished Factory. In December 2023, TVRA announced that it would establish a 'Brand Centre' at Thruxton for developing and establishing its new range of sportscars.
- The Auditor General reported that in February 2024, the Welsh Government had confirmed that TVRA no longer wanted to lease the Factory or locate production in Wales. Since November 2023, TVRA had been paying a monthly rental charge of £322 and had been invoiced for this rent to 22 June 2024. The Welsh Government had had to extend the loan repayment period but still achieved a return on its investment when TVRA eventually repaid it in April 2022. The Welsh Government still held an equity stake in TVRA based on its share investment of £0.5 million in 2016. However, this equity stake was reduced to 1.6% of the total shares upon the third party's investment. In June 2023, the Welsh Government entered a new shareholder agreement with TVRA and secured an ongoing buyback agreement which it could exercise whenever it chose to sell its shares back to TVRA at 100% of the fair value.
- The Auditor General reported that in July 2023, refurbishment work on the Factory was complete, at a cost of £7.6 million. At that time, and because TVRA was still not able to lease the building for production purposes, the Welsh Government considered two options: (1) selling it, at a market value of around £7.5 million; a loss of £4.85 million against purchase and refurbishment costs; or (2) leasing it to an alternative tenant which could generate approximately £0.735 million per year over a lease term of 10 to 15 years, giving a total return of £7.350 – £11.025 million. The Welsh Government decided to pursue the alternative tenant option. As at 12 July 2024 no formal offers had been received.
- The Auditor General reported that in May 2024, the Welsh Government obtained external advice regarding its shareholding, including a share valuation lower than the price originally paid which has been agreed by TVRA. Under its contractual arrangement with TVRA, the Welsh Government had the option to serve TVRA with 10 days' notice that it wishes to transact on that basis. The Welsh Government was considering whether to: (1) sell back the shares to TVRA at the value agreed or (2) retain the shares in the hope that the share price might increase from the then current valuation, potentially generating a more positive return on the original share investment.
The Hearing
- We had before us an OPEN bundle containing the pleadings, material generated in the Commissioner's investigation, and further evidence supplied by the Appellant to the Tribunal on 10 September 2024.
- We also had before us a CLOSED bundle consisting of indexed correspondence between the Commissioner and the Council, of which the Commissioner had provided information concerning the index to the Appellant.
- We give our reasons for our decision in this single, OPEN judgment. It is not necessary for us to provide any of our reasoning in a CLOSED judgment.
The Legal Framework
- The relevant provisions of FOIA are as follows:
Section 1
General right of access to information held by public authorities.
(1) Any person making a request for information to a public authority is entitled-
(a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) If that is the case, to have that information communicated to him.
…
Section 2
Effect of the exemptions in Part II.
...
(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
Section 31
Law enforcement.
(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
...
(d) the assessment or collection of any tax or duty or of any imposition of a similar nature,
...
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).
Section 58
Determination of appeals
(1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
- The import of s58 FOIA is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority's response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner's decision is in accordance with the law.
Analysis
Section 31 FOIA
- S31 FOIA is a prejudice-based exemption.
- The approach to be taken in prejudice cases was set out in the First-tier Tribunal decision of Hogan v Information Commissioner [2011] 1 Info LR 588, as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1. First, the applicable interests within the relevant exemption must be identified. Second, the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is "real, actual or of substance". Third, the likelihood of occurrence of prejudice must be considered. The degree of risk must be such that there is a "real and significant" risk of prejudice, or there "may very well" be such prejudice, even if this falls short of being more probable than not.
Applicable Interests
- We find that the applicable interests are the assessment or collection of business rates, which fall within the broad terms of "any tax or duty or any imposition of a similar nature" within s31(1)(d) FOIA.
The nature of the prejudice and the causal link
- We find that if a public authority chooses to confirm or deny that it holds information of the type requested by the Appellant, such confirmation or denial, effectively to the world, may well harm a public authority's investigation into a business' liability for such rates. For example, it may give a party potentially liable to pay rates a "heads-up" and enable it to attempt to modify at least the presentation, if not the actuality, of its occupancy arrangements, including retrospectively, whether by the alteration or creation of evidence or otherwise.
- Such confirmation or denial may also damage a public authority's preparation of its case, effectively by forcing its hand early.
- Such confirmation or denial may also reveal a public authority's general approach to such investigations, thus prejudicing future investigations more generally.
- We find that each type of those harms to a public authority's ability to collect business rates is real and of substance: business rates avoidance imposes an unfair burden on the public and prevents collection of monies due which could otherwise be deployed for the public good. Public authorities should not be hampered in their collection of such rates.
The likelihood of prejudice
- The question of the meaning of likelihood in the current context was addressed by the Tribunal in John Connor Press Associates Ltd v Information Commissioner (EA/2005/0005, 25 January 2006): "We interpret the expression "likely to prejudice" as meaning 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." In so doing, the Tribunal drew on the judgment of Munby J in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin) (a Data Protection Act case) who said: "In my judgment "likely" ... connotes a degree of probability that there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there 'may very well' be prejudice to those interests, even if the risk falls short of being more probable than not." [100].
- We adopt the interpretation of "likely to prejudice" as meaning that the chance of the prejudice being suffered is more than a hypothetical or remote possibility; there is a real and significant risk. We find that as at 25 September 2023, confirmation or denial by the Council that it held the information requested would be likely to prejudice the interests we have identified.
Information in the public domain
- The Appellant has argued forcefully by reference to press articles, the Welsh Government Request and the response thereto, and the Auditor General report that the fact of TVR's occupancy of the Factory has been in the public domain. We understand his submission to be that such matters vitiate any causal link between confirmation or denial and prejudice and are directly relevant to the assessment of the public interest.
- We bear in mind that the information requested was not whether TVR was in occupation of the Factory at any given time but what information TVR had itself provided to the Council as to its possible occupancy, and, if it had not informed the Council that it had occupied the Factory, what steps the Council was going to take to recover any rates due. Even were the fact of TVR's occupancy of the Factory in the public domain at the date of refusal of the Request, that did not mean that any of the specific information requested by the Appellant was in the public domain.
- What we must consider is whether (a) the requested information and (b) whether the Council held the requested information, were matters in the public domain at the time of refusal of the Request, 25 September 2023.
- The two press articles preceding 25 September 2023 to which the Appellant referred were the online Telegraph article of 20 August 2023, and the GB News article of 25 August 2023. At least the Telegraph article was behind a paywall, thus considerably limiting its public accessibility. We were not shown either article, only the screenshots of their headings and part of what we assume to be the opening sentence of each article.
- We were not shown any relevant material on the Pistonheads forum, whether as at 25 September 2023, or at all. We understand that the Pistonheads forum is an online motoring community providing access to news and reviews on performance cars and enabling members to read and post comments on related topics. The Appellant told us that he had published the Welsh Government Response on the forum which had been discussed by a "number of people", and that such discussion was not behind a paywall. We remind ourselves that the Welsh Government Response post-dated the refusal of the Request.
- Whether information is in the public domain is a question of fact and degree. Press reporting of information is not, of itself, sufficient to entail that such information is automatically to be regarded as being in the public domain. Much will turn on the extent of that reporting, and the identity of the reporting medium. For example, we do not consider that information, including whether or not a public authority may hold information, published by individuals on an online forum which attracts private commentary (as in, the personal views) of subject-specific enthusiasts, begins to equate to the publication of such information directly by a public authority, whose identity attributes ultimate authority and credibility to the information in question.
- On the evidence before us, we cannot see that (a) the requested information or (b) whether the Council held the requested information, were matters in the public domain at the time of refusal of the Request, 25 September 2023. We find on the balance of probabilities that no such information was in the public domain.
- Having considered all the material before us, and looking at matters in the round, we are satisfied that 31(3) FOIA is engaged in relation to the Request.
The Public Interest
- Section 31 FOIA is a qualified exemption which means that if it is engaged, we must still determine the public interest in the Council neither confirming nor denying whether it held the requested information.
- To the extent that the information requested, or the fact of whether or not the Council held such information, was in the public domain at the time of refusal of the Request, that may have been relevant in our assessment of the public interest. However, for the reasons we have given, we do not find that such information was in the public domain.
- The Appellant submitted that there is a clear public interest in the information he requested against the background of (a) the very substantial investment of public funds in a deprived area where it had been hoped that TVR's business would create employment, and (b) the narrative report of the course of events around that provided by the Auditor General.
- First, there is a distinction to be drawn between matters in which the public may be interested, and matters which are properly in the public interest, that is to say, where it is for the public good that particular information be known. Press articles are not, or not exclusively, determinative of that latter question.
- Second, we fully accept both that the public may be interested in, and that there may be a public interest in knowing, the general course of events as set out by the Auditor General, specifically how effective the Welsh Government has been in its stewardship of public funds relating to the acquisition and refurbishment of the Factory site. However, those interests are irrelevant to our determination as to the public interest in relation to the Council's neither confirming nor denying it held the precise information requested by the Appellant.
- Third, the public interest is to be assessed as at the date of refusal of the Request, in this case 25 September 2023, not by reference to subsequent events, including press reports, or auditor or government comment.
- We find that there is a public interest in the transparency and accountability of public authorities generally, particularly in the public having confidence that public authorities are discharging their obligations to collect taxes. We also find that there is a public interest in knowing that taxable businesses are, in fact, meeting their tax liabilities, and, arguably, in knowing which businesses are not meeting those liabilities. However, confirmation or denial by the Council as to whether it held the information requested in this case would not, of itself, achieve any of those things.
- We find that there is a strong public interest in public authorities neither confirming nor denying whether they hold information relating to the collection of taxes, where confirmation or denial may well prejudice any current, intended or future investigation by effectively "tipping-off" any party potentially liable to pay those taxes. We find that such public interest is all the stronger in the face of a request, such as in this case, which seeks very specific information: the more specific the disclosure which a public authority might make in response to such a request, the more that may assist the rates-payer to prepare or modify its response to the public authority to anticipate any possible liability, and consequently increase the likelihood of the prejudice we have identified.
Conclusion
- We note that the Commissioner concluded in his Decision Notice that the public interest in maintaining the exemption outweighed the public interest in disclosing the information. We consider that in that respect he erred: the exercise is not to balance a public interest in maintaining the exemption from confirming or denying that information is held against a public interest in disclosing the information. It appears that the Commissioner has, in error, conflated balancing public interests for and against disclosure, with the public interest factors to be balanced in the context of confirmation or denial as to whether information is held.
- Nevertheless, for the reasons we have given, we find that the Council was entitled neither to confirm nor deny it held the information requested pursuant to s31(3) FOIA, and to that extent the Commissioner's Decision Notice is in accordance with the law.
- We dismiss the appeal.
Signed: Judge Foss
Date: 5 March 2025
