Garrett Hargan v The Information Commissioner

1. This is an appeal brought by Garrett Hargan against Decision Notice number IC-310774-V6N9 issued by the Information Commissioner (“the Commissioner”) on 10 th December 2024.

2. The Decision Notice referred to a request made by Mr Hargan of the Second Respondent, the University of Ulster (“the University”).

3. The appeal is brought under the Freedom of Information Act 2000 (“FOIA”). References to “ the Act ” can be assumed to be reference to that Act unless otherwise stated.

4. The Appellant seeks information relating to the income and expenditure of the Second Respondent with particular focus on its level of investment in its Magee campus. The Law

5. 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 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. Section 43 : Commercial interests (2) 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).

6. Under s58 FOIA 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, on the merits, whether the Commissioner’s decision is in accordance with the law. The background

7. The Appellant is a journalist with a particular interest in the development and economic interests of Derry-Londonderry.

8. The Second Respondent is a multi-campus institution, offering programmes across its three campuses in Belfast, Coleraine and Derry-Londonderry. The Appellant sought information about financial matters relating to the Magee campus, known also as Magee campus.

9. The timeline of the request and the response was set out in the Second Respondent’s skeleton argument and is taken largely from that document.

10. On 25 th March 2024, the Appellant wrote to the University, seeking information in the following terms: Can Ulster University outline the expenditure on each of its campuses and the income generated from each of its campuses over the past five years? Please break that down into separate campuses. If possible break it down to down [sic] the amount spent on teaching, accommodation, etc? Then how much is generated ie from international students or research.

11. The Second Respondent responded on 25 th April 2024. It divided the request into the following four headings: (1) outline of expenditure on each of the University’s campuses and the income generated from each of its campuses over the past five years, broken down by campus; (2) amount spent on teaching, accommodation by campus; (3) how much generated from international students by campus; and (4) how much generated from research by campus.

12. The University responded that it did not hold any of the requested information, since it did not record expenditure and income by campus. It provided a link to the University accounts on its website, detailing income and expenditure over the last 23 years.

13. On 25 th April 2024 the Appellant requested an internal review.

14. The University provided a response to that review request on 31 st May 2024. It maintained its position with regard to items (1), (2) and (4). In respect of item (3), its position was altered.

15. The University accepted, further to the internal review, that it held this information, since it held the “building blocks” from which the information could be generated. However, the University withheld this information under the exemption in section 43(2) FOIA (prejudice to commercial interests).

16. It maintained that, by placing the amount generated by each international student by campus alongside the number of students, the University’s competitors would be able to calculate the level of payments made to agents for the recruitment of students. The tuition fees are publicly available. This information, it said, would be harmful to the commercial interests of the University, as the international student market is highly competitive.

17. s43 is a qualified exemption, which means that there is a further step a public authority is required to take before it may rely on the exemption. That is that it must consider whether or not it is in the public interest to maintain the exemption. The University had applied the relevant test and determined that it was in the public interest.

18. On 31 st May 2024 the Appellant complained to the Information Commissioner.

19. The following paragraphs, which simply assist with the chronology, are taken directly from the skeleton argument of the Second Respondent:

19. The University’s response dated 8th October dealt first with the application of section 43(2) FOIA to the information about income generated by international students. It enclosed the two documents that are in the closed bundle: one contained the withheld information itself, and the other contained a worked example showing how the withheld information could be combined with information previously disclosed by the University under FOIA, so as to calculate the level of commission payments made by the University to agents in connection with the recruitment of overseas students.

20. The response explained that the University’s position was that disclosure of the requested information would be likely to prejudice the University’s commercial interests. The University did not rely on the higher threshold under section 43(2) that disclosure would prejudice those interests.

21. The response also explained that the University did not otherwise hold information about income and expenditure at campus level: hence (other than in relation to income from overseas students) the University did not hold the information requested by Mr. Hargan, since to answer the request it would need to generate new information.

22. The University’s further response dated 25th November 2024 gave a more detailed explanation of how disclosure of the requested information about income overseas students could be used by the University’s competitors so as to damage the University’s commercial interests. The Decision Notice

20. A Decision Notice was issued by the Commissioner on 10 th December 2024, upholding the decision of the University.

21. The Commissioner’s decision was that he did not require any further steps to be taken. He found that the University was correct to withhold the requested information under s43(2) and that the public interest favoured maintaining the exemption. He found that, on the balance of probabilities, the University did not hold any further information falling within the scope of the request.

22. With regard to the information that was said not to be held, the Commissioner took the view that the Second Respondent had applied the correct test. It had stated that it allocated budgets and collected information by faculty rather than by campus, that faculties extended across multiple campuses and that expenditure was managed on behalf of the University as a whole. The Commissioner considered his own guidance stating that there is no obligation on a public authority to create information that it does not hold in order to satisfy a request.

23. With regard to the argument for maintaining the s43(2) exemption, the Commissioner’s assessment was that additional information would be required for a competitor organisation to be able actually to calculate the fees paid to agents, but that the total agent cost per campus would still be useful to competitors. In his opinion the amount spent on agency fees in order to target and attract potential students would be of significant interest to its competitors. He accepted that, particularly in comparison with its closest competitor, Queens University Belfast (“QUB”), the University was relatively small and that any prejudice to its position in the international market was likely to be sensitive. He found that the public interest in maintaining the exemption therefore outweighed that in favour of disclosure. The appeal

24. An appeal form was submitted on 10 th December 2024. In his appeal form, the Appellant made the following points: a. The response constituted a deliberate concealment by the University, which receives a great deal of criticism for failure to invest in Magee campus; b. He did not accept that the University did not hold the information available on a campus-by-campus basis; the University must know which of its campuses are performing well from a financial perspective; c. Such information has been provided in the past upon request; d. In relation to the commercial sensitivity question, the use of agents has nothing to do with the question of the information requested. The First Respondent’s position

25. On 6 th June 2025, the Commissioner submitted that the appeal should be dismissed. His response was brief and simply stated that the Decision Notice was relied upon. The Second Respondent’s position

26. Counsel for the Second Respondent provided the Tribunal with a skeleton argument. The withheld information fell into two categories. The “not held” issue (headings 1, 2 and 4 of the request) and the “commercial sensitivity” issue (heading 3).

27. In respect of the “not held” issue, the Second Respondent’s case was that the Commissioner, at paragraphs 49-65 of the Decision Notice, had applied the correct analysis. Counsel submitted that financial information in relation to the University’s income was monitored by faculty and not by campus. The requested information was not held at campus level. He submitted that, while it might have been possible to create the data sought by the Appellant, that would require someone to analyse multiple items of income and expenditure and allocate them by campus. It was his case that this process would represent creating new data.

28. The Second Respondent sought to rely on ICO guidance. It submitted that, if a public authority holds the “building blocks” from which the information can be readily derived then it can consider that the information is held. If skill and judgment would be required to create the requested information, this would amount to the creation of new information. The public authority is not required to do that. Counsel cited the case of Surrey Searches Limited and Others v Northumbrian Water Limited and others [2024] EWHC 1643, in support of this contention.

29. The Appellant had submitted that the Second Respondent must hold information at campus level for two reasons. Firstly, it had been able to make a decision to close a theatre on the Coleraine campus for financial reasons and secondly it held a Fixed Assets Register. It was submitted on behalf of the Second Respondent that it did not follow, from this, that information relating to student income and numbers was held at campus level.

30. The witness statement of Mr Bartholomew was relied upon as evidence for the way in which the University recorded the requested information.

31. In respect of the “commercial sensitivity” issue, it was submitted that the First Respondent had been correct in its analysis at paragraphs 12-48 of the Decision Notice. In the case of heading (3) the Second Respondent said that it did hold the “building blocks” from which this information could be extrapolated but that if the information was released, rival institutions would be able to use that data to work out how much commission was paid to recruitment agents in an effort to attract students. Access to that information would enable them to tailor their own offers to agents and this would prejudice the interests of the Second Respondent in an extremely competitive marketplace.

32. In this way, the protection of s43(2) was attracted. To engage s43(2) requires a finding that the disclosure of the relevant information would, or would be likely to, prejudice the commercial interests of any person. The skeleton argument was silent on that point. Evidence

33. The panel took account of an open bundle of papers which ran to 172 pages. We also took account of a short closed bundle containing the withheld material and a demonstration of how the commercially sensitive information might be extrapolated from it. The hearing

34. Counsel for the Second Respondent set out his submissions at the outset and those were in line with the written submissions.

35. The Vice-Chancellor of the University, Mr Paul Bartholomew, gave evidence to assist the Tribunal. He adopted his statement and answered some supplemental questions from the panel and the Appellant.

36. Upon questions in open session from the panel, Mr Bartholomew confirmed that applications from students are made to the University as a whole institution and that courses are delivered across different campuses. Students apply to a particular campus but may not be allocated to that one. For the most part however, they are taught on a single campus. Sports was the highlighted exception. However the University operates as a single institution. Mr Bartholomew told the Tribunal that there had been significant efforts to enhance the identity of the University as a single institution. In particular, and with relevance to the current case, academics work across multiple campuses, there is no local authority or leadership on each campus and faculties operate across campuses with staff travelling as appropriate. Tuition fees are paid centrally to the University.

37. In response to the Appellant Mr Bartholomew confirmed that he, personally, had an office at each campus and visited each of them most weeks. He confirmed that administrative functions were also spread across campuses but accepted that the bulk of administrative support service staff were based at Coleraine, because Coleraine was the registered headquarters of the university.

38. He was asked whether a £370 million investment in one campus might tend to suggest that that particular campus was the priority and denied that that was the case.

39. The hearing then went into closed session. A gist of that session was prepared by Counsel for the Second Respondent and was as follows: a. The Vice Chancellor explained in more detail how the withheld information could be used to draw inferences about level of commission to agents. b. The Vice Chancellor emphasised that disclosure would show different levels of commission at different campuses, level of granularity useful to competitors. c. The Vice Chancellor emphasised that within Northern Ireland, QUB is the competitor. d. The Vice Chancellor explained that although the withheld information would not reveal the exact figure for agent fees, disclosure would give sufficient information to be of benefit to competitors. e. Adverse impact outweighed any advantage in disclosure which he saw as limited. f. This was achieved by the Vice Chancellor talking to the closed bundle and the panel asking him about the documents while everyone had them in front of them.

40. Counsel for the Second Respondent made closing submissions. He invited the panel to find that the Commissioner had correctly determined the Decision Notice and that no action was required.

41. The Appellant made closing submissions and provided those later in writing. His main line of submission was that he had seen years of reduced investment in the Magee campus. He did not feel that the University had any interest in operating in a way which was financially transparent and surmise that this was because it wished to conceal the fact that its priorities lay in Belfast, leaving Magee woefully short of investment. Discussion and conclusions Information not held

42. The sworn evidence of Mr Bartholomew as to how the information was collected and processed was not challenged by the Appellant and the panel accepts that the institution itself would be best placed to provide that evidence. In his closing submission the Appellant relied upon previous Tribunal findings, in which the Second Respondent had been directed to disclose information it had claimed was not held. This panel could only take account of the evidence before us on this particular point and, as we have said, there was no real challenge to the evidence of Mr Bartholomew.

43. The conclusion of the panel, therefore, was that the information was not held. We took the view that, under FOIA, a declaration that the information is not held in the format requested is a declaration that the information is not held. s1(1) reads as follows (emphasis added): Any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request and, if that is the case, to have that information communicated to him.

44. In the ICO’s guidance, this is expanded as follows: FOIA only applies to information that a public authority already holds in recorded form at the time of a request. If you don’t hold a particular piece of information that someone has asked for, you don’t have to create it. Nor are you required to ask a third party for the information, unless they hold it on your behalf. … If you have the “building blocks” necessary to produce a particular type of information, it is likely that you would hold that information unless it requires particular skills or expertise to put the building blocks together.

45. The Tribunal accepts the evidence of Mr Bartholomew that the Second Respondent operates in such a way that the information pertinent to student income is calculated on a university-wide basis and is not apportioned campus by campus.

46. The panel considered that, when income and expenditure is recorded in a single ledger which covers three areas (in this case campuses), there would have to be a degree of skill and judgement in going through those entries in order to apportion them to separate campuses. In this case, while students are allocated to a particular campus, the academic staff are not. To produce a comprehensive reallocation of expenses and income over the course of the last five years would entail more than simple arithmetic. It was our view that what the Appellant seeks is effectively new information.

47. The Law is clear on this point. While the Appellant may have wished for the information to have been processed, which was undoubtedly possible, or for it to have been gathered in a different way, it was not. He may or may not be correct in his suspicions as to why the Second Respondent has chosen to hold and process the requested information in the way that it has. Either way, the Tribunal has no jurisdiction to direct that the further processing that would produce the requested information is undertaken.

48. The Tribunal found that the requested information was not held and the appeal is therefore dismissed in respect of headings (1), (2) and (4). Heading (3): s43(2) commercial interest

49. In short, the evidence provided in the closed session did not persuade us that the exemption applies.

50. The principle argument was that, in a competitive market competing for international students, the use of agents is a widespread and critical part of the Second Respondent’s marketing strategy. Were other institutions able to deduce how much commission was being paid to agents, it would enable them to increase their own commission accordingly. This was, though, at odds with evidence suggesting that it is the agents, not the universities, who set the commission rates.

51. While we accepted that there was a possibility that the withheld material might prejudice the commercial interests of the Second Respondent, we did not consider that the information met either of the tests set out in the section: would or would likely . This means that there is a “real and significant risk” that the public authority would be prejudiced by the disclosure of the information ( Dept for Work and Pensions v ICO and Zola [2016] EWCA Civ 578 ).

52. There were two aspects to our findings on this point. Firstly, and perhaps most importantly, we did not consider it to be as easy as it was suggested to work out commission fees from the withheld information. The level of detail was lacking and, critically, this meant that any commission estimates would be just that. We were not persuaded that a competitor would be able to determine the level of commission being paid with any degree of accuracy beyond that which they might already estimate from their own knowledge of the market.

53. The second aspect was this. We recognise that the use of agents is a common practice across a range of sectors. However, the panel considered that there are a large number of factors an aspiring student will consider when applying to university. Those include, but are not limited to, grades anticipated or achieved, course types and options, academic reputation, location, cost, accommodation options, and social factors such as societies and clubs on offer. In short we considered that the pressure applied by an agent was only one factor in an individual determining where they might choose to study.

54. The principle concern appeared to be the competition with QUB, the institution’s primary competitor, a Russell Group university with a long-established reputation. The newer University of Ulster holds its own position in the market and each will have its own attractions.

55. Putting those two factors together, we did not consider there to be a “real and significant risk” that the University would, or would be likely to, be prejudiced by the disclosure of the information.

56. The threshold having not been met, the legislation does not require us to go on to consider the public interest test.

57. The Second Respondent is therefore directed to disclose the information identified as belonging to heading (3) within 30 days of the promulgation of this decision.