Disclosure of information

January 10th, 2023 by James Goudie KC

In SPOTLIGHT ON COMPETITION v INFORMATION COMMISSIONER, EA-2022-0014 & EA-2022-0061, the First Tier Tribunal is concerned with loans to support businesses during the Covid pandemic, holds that it is not in the public interest to release information that could expose the recipients to fraudsters by revealing the recipients’ names, and summarises the principles relating to the “commercial interests “ exemption from disclosure under the Freedom of Information Act 2000 as follows : –

  1. “ Commercial interests “ should be interpreted “ broadly “ : paras 188/189;
  2. The exemption is “ prejudice based “ : para 190;
  3. The prejudice must be more probable than not : there must be a real and significant risk of prejudice : ibid;
  4. The public authority must show that (i) there is some causative link between the potential disclosure and the prejudice, and (ii) the prejudice is real, actual or of substance : ibid;
  5. The harm must relate to the interests protected by the exemption : ibid;
  6. It is a qualified exemption : para 191;
  7. In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect : para 192;
  8. Where the specified activity or interest which would be likely to be prejudiced is a public interest, there is an overlap between whether or nor not the commercial interest exemption is engaged and any subsequent analysis of the public interest test : para313;

There is a public interest in preventing prejudice to commercial interests : para 314.

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