On 10 July 2021, the General Regulatory Chamber of the First-tier Tribunal held that Hertfordshire County Council ("HCC") was not permitted to withhold certain information relating to the procurement of school providers as exempt information under the Freedom of Information Act 2000 (the "Act").
The request
On 11 July 2019, Mr Church submitted a request under the Act to HCC for the release of information about the process by which Avanti Schools Trust ("AST") was chosen to provide new schools in the area of Bishops Stortford North in East Hertfordshire.
In particular, he requested access to the following documents:
- AST's application to run this new school and the applications of any other entity who bid to run the school;
- the assessment criteria template scoring grades and document setting out the assessment process;
- the name and qualifications of the individuals on the selection panel;
- the actual scores awarded to Avanti and any accompanying documents containing an assessment of the bid; and
- the notes taken by the selection panel during the interview process with Avanti.
The refusal and exemptions
HCC provided some of the requested information but refused to provide:
- the applications of AST and other bidding entities, AST's scores, the accompanying documents, and evaluators' notes, on the basis disclosure of any of these would be prejudicial to commercial interests; and
- the names of the individuals on the selection panel, on the basis that it did not have their consent to do so, and this was exempt under section 40(2) as it was their personal information (although it did provide information on their roles).
On point (1), HCC argued that disclosure would place third parties, in particular trusts that might also bid in future similar processes run by HCC, at a commercial disadvantage and could deter them, and others, from submitting applications in future, thereby reducing the field of applicants that HCC could choose from.
On point (2), while HCC provided the details of the senior position held (or formerly held) by members of the panel, it refused to supply their names where it did not have consent to do so. HCC relied on section 40(2) of the Act which provides that information is exempt from disclosure where it is personal information under the Data Protection Act 2018 and any of the three conditions mentioned in the Act are met (in particular, the first condition, which provides an exemption if disclosure would breach the data protection principles).
The decision of the Information Commissioner (the "ICO")
When Mr Church made an application to the ICO, the ICO upheld HCC's refusals, holding that the information on AST's application would harm AST's commercial interests if released, and that the information on the individuals on the panel was personal data that could not be disclosed without beaching the data protection principles (because they were not at a level of seniority where they should expect to be held publicly accountable for their actions).
The appeal and the decision of the Tribunal
Mr Church successfully appealed the decision of the ICO to the First Tier Tribunal, which identified flaws in the ICO's analysis of the circumstances.
With regard to the exemption for commercially sensitive information, the First Tier Tribunal held that this ought to have been disclosed because that exemption is subject to the public interest test (i.e. it can only be withheld if the public interest in disclosing it is outweighed by the public interest in withholding it), and the FTT considered that the public interest "is decisively weighted in favour of disclosure". That is because the selection of independent organisations to receive public funds to deliver a service such as education is a matter of considerable public interest.
The Tribunal identified that there was in fact "barely a single figure in the documents" nor was there an indication of inventive or unique managerial thinking, and so nothing that would require protection from disclosure on the basis that the information was commercially sensitive. The competition was not like a public procurement exercise – it was not as "commercial" in nature. It was probably significant to the FTT's conclusions that each of the entities entering bids provided services solely to the public sector (by the nature of their business as school operators) and therefore it would be difficult for commercial prejudice to arise (AST and all of its competitors would be in the same boat, and there was no alternative market for their services that was not subject to FOI laws). To a degree this judgment may therefore be quite case-specific, but it is a reminder to public authorities, and private service providers, that not all information on commercial matters is "commercially sensitive" for FOI purposes.
Turning to HCC's use of the Act's section 40(2) exemption concerning the disclosure of personal information, the Tribunal upheld HCC's decision to withhold CVs for proposed staff and the details of individuals, but held that information about trustees should be disclosed, on the basis that they are the accountable, public-facing officers of AST and should have an expectation that their names, and other information on them that was included in an application to run a school, will be made public. The FTT also agreed with Mr Church in his assertion that the IC had simply "uncritically accepted" the Council's argument that the members of the selection panel were not sufficiently senior for their names to be revealed and found – contrary to the view of the ICO – that as those individuals were considered senior enough to recommend to the Secretary of State who ought to run a school, they were senior enough for their names to be disclosable in response to an FOI request.
This is a question that regularly arises for public bodies deciding which personal information they hold on their employees, former employees and others should be disclosed in response to an FOI request, or a subject access request by a third party. This will always be a matter of case-by-case judgement, but the key point remains that the more seniority an individual has within the public sector, the less expectation they have of privacy.
As with public sector organisations themselves, for senior officers being in the public sector simply means accepting a degree of public-facing accountability.
We regularly advise public bodies, their private sector partners, and requesters on FOI laws. If you have any questions in relation to the above, please get in touch with Jackie McGuire, Charles Livingstone or Jamie Dunne.
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