N Quinn v The Information Commissioner & Anor

Introduction

1. This is an appeal against Decision Notice referenced IC-297382-LB52 dated 17 September 2024.

2. The Appellant requested information from Mid Devon District Council (“the Council”) relating to the Council’s leisure charges strategy. The Council’s leisure services are offered to the community through three leisure centres owned by the Council in the Mid Devon area and operated at the material time by the Council's leisure services arm called Mid Devon Leisure (“MDL”).

3. By the Decision Notice, the Respondent (“the Commissioner”) decided that the Council was entitled to withhold the requested information pursuant to s43(2) (commercial interests) of the Freedom of Information Act 2000 (“FOIA”), and that the Council was not required to take any further steps.

4. The Tribunal’s decision is unanimous.

5. The Tribunal has issued an OPEN decision of 44 pages, and a CLOSED decision of 63 pages addressing in detail the information requested by the Appellant which the Council contends should be withheld. Background

6. At a Council meeting on 19 July 2023, the Councillors and Officers of the Council moved a resolution to review the pricing of the Council's leisure services. We set out in full the relevant extract from the minutes of that meeting: “Motion: Leisure Services VAT

1. That this Council is pleased at the outcome of the legal challenge which has concluded in March that local authority leisure services are to be treated as nonbusiness for VAT purposes and welcomes the Leisure VAT refund of almost £3M now due from HMRC to support the past and continued subsidisation of the Council’s Leisure Services.

2. This Council asks that a report be prepared for the appropriate Policy Development Group to consider the various issues and options available and then make recommendations to Cabinet and Council in the usual way in relation to the budget.

3. That the Council should consider changes to the Leisure Services Pricing structure after a full review and recommendation from the relevant PDG.

4. That this council should fully review all leisure pricing in an open and transparent way by conducting a review of pricing through the appropriate Policy Development Group before making recommendations to Cabinet in the usual way for implementation from 1st April 2024 (2024-2025) financial year. And that the review should have due regard for the subsidy given to the leisure services and the impact on the wider district Taxpayer of any reduction. Consideration was given to: • That decisions required discussion with facts and consultations reviewed, with reviews of the leisure charges conducted openly and transparently. • Collaborative work was needed and that there was a need to be fiscally responsible, in the interest of all residents. • Leisure Centres were important to residents and council tax would be spent wisely and carefully in the interest of residents. • Without subsidies leisure services would be unaffordable and there was an aim to maintain affordability for leisure services. Subsidises had been carried out through improved energy efficiencies. • An options report had been commissioned to make sure pricing would be done openly and that there was a need to look at information before a decision was made. • The Leisure pricing strategy was due to be presented to the Community Policy Development Group. • That the VAT refund be re-invested back into the leisure capital budget. • Concern that written amendments included predeterminations. • That these amendments lack context, breached procedure rule 16.4 and that delays would be caused. • The Council spent £1.4m per year to subsidise the leisure centres which would equate to an extra £200 per leisure centre member and that the cost of living crisis was also a factor to consider. The District Solicitor & Monitoring Officer advised that there could be some contention within point 3 of the written amendment, as reference was made to ‘only consider’. To which the Chairman suggested that the word ‘only’ be removed. Upon a vote being taken, the AMENDMENT was declared to have CARRIED.”

7. Pausing here: reference to the outcome of a legal challenge was to a decision by the Upper Tribunal that local authority leisure services are to be treated as non-business for VAT purposes where the Upper Tribunal found that local authorities’ leisure services are provided under a statutory framework and can be treated as non-business for VAT purposes (HMRC v Chelmsford City Council [2022] UKUK 00149 (TCC)).

8. After the Council meeting on 19 July 2023, the Council commissioned a report from Max Associates Limited, a specialist leisure consultancy. The Council has described the commission as follows: “ ... an independent service review for [the Council] for its Leisure services. The Council was keen to understand how current performance compares to the wider public leisure sector and its offer against local competition.”

9. On 24 October 2023, having received the report from Max Associates Limited, the Council’s Community Policy Development Group met to consider proposals to change the Council’s leisure charges strategy with a view to recommending that the Council’s Cabinet approve the changes.

10. On 14 November 2023, the Cabinet meeting of the Council approved the recommended changes to the leisure charges. The minutes of the meeting record the following.

11. First, a Mr Tim Bridger said this: “ All public servants whether paid or elected are expected to abide by the Nolan Principles of public life. These seven principles are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. These are important elements of public service, important for outcomes of good governance, ethical culture and legitimacy. Where in those principles does it state that intimidating members of the public arriving at meetings, suppressing debate and legitimate comment, labelling tax payers as ‘scurrilous’ and using threatening advice of the paid staff to those same members of the public, are acceptable behaviours under those principles? Secondly, agenda item 12, Leisure Pricing…. the public are not satisfied that this discussion should be taking place without public scrutiny. To date there have been three changes of approach to the Leisure Centre refund. Firstly that it will be used to offset bad debt which was back in June time. Secondly following a Motion by Cllr Woollatt that the money would not be used in such a way and thirdly that it will be used like a previously unmentioned annual loss to the tax payer of either £1.8m or £2.1m depending on whether you include missed membership targets. The inconsistencies of this approach have only been highlighted and u-turns forced through public scrutiny. To the public, excluding item 12 from public debate looks very much like a fourth approach in as many months. That will not see value for money to the tax payer. This is precisely the sort of decision being made behind closed doors which so enraged the Lib Dems when they were in opposition but seems to be the go-to mode not only now that they have moved into the Cabinet system but decided to keep it despite the clear decision 6 months ago to move to a Committee structure. ”

12. The minutes of the meeting record the Leader, L Taylor, responding as follows: “... councillors absolutely complied with the Nolan Principles and if anybody had a complaint about a councillor this could be taken to Standards Committee. As regards discussing the Leisure pricing item in Part II, he hoped Mr Bridger could appreciate the sensitivities involved and the commercial nature around that particular agenda item seeing as the Council wanted to provide good value at the Leisure Centres which obviously faced a lot of competition whereas if the Cabinet were to discuss that in the public domain he was sure Mr Bridger wouldn’t want the Council to be losing revenue to it’s [sic] competition .”

13. Second, the Cabinet considered the Council’s leisure policy and pricing strategy. Below is the full record of that part of the meeting. “ LEISURE POLICY AND PRICING STRATEGY (03:37:00) The Cabinet had before it a report * from the Corporate Manager for Council Tax, Business Rate, Benefits, Corporate Recovery, Planning & Leisure informing it of proposals to change the Leisure fees and charges strategy. The Community Policy Development Group had RECOMMENDED that the fees and charges proposed within the report be approved. The contents of the report were outlined by the Cabinet Member for Community & Leisure. Following discussion and having returned to open session, the Cabinet: RESOLVED that the strategy to change fees and charges as proposed in the report at sections 2.8.1 and 2.8.2 be approved. (Proposed by Cllr D Wulff and seconded by Cllr S Keable) Reason for the decision There is a legal obligation to notify customers with direct debits of any changes to their payments with at least 10 day notice. As we are increasing these, for some customers, we will aim to give at least 2 weeks’ notice. The commercial nature of the industry and the cost of living crisis means that Mid Devon Leisure can be vulnerable to threats from; competition, substitutions and price sensitivity. It could also exclude certain priority groups the service is trying to encourage to use the facilities and get active, however the pricing strategy is trying to minimise the impact on these groups as much as possible. The service plans to ensure the marketing message around any price increases showcases the value attached to the service with the service’s unique selling points to ensure we continue to grow, and maintain, participation levels at mid Devon Leisure. Following the decision made by the Cabinet, the Cabinet Member for Community & Leisure made the following statement: “In looking at the leisure pricing, both the Community Policy Development Group and the Cabinet gave consideration to how we can encourage greater participation, and increased activity, amongst young people by giving access to the full facilities at an affordable rate. This is particularly important given the life-long health benefits early access to health, fitness and sports can provide. This is something that Mid Devon Leisure is uniquely positioned to deliver due to the high quality of its pools and courts, fitness equipment and instructors amongst its peers. Inflation affects us all. Whilst funding the service to ensure it continues to deliver that high quality, we need to be confident we do not put barriers up that prevent low-income users from accessing these services, and we must ensure we don’t pass on the increasing costs of the service to those least able to afford it. Mid Devon Leisure will continue to support those members of the community accessing means tested benefits via Concessionary discounting to pay and play fees and charges, in addition to discounted membership opportunities. And staff have already identified new services to offer that cater to younger people and help increase access to physical activity in fun and collaborative ways. Additionally, we have also committed to making it easier for care leavers to access our leisure services by agreeing to offer care experienced young people (up to the age of 25) a leisure membership at an effective 100% discount rate. We were the first district council in Devon to exempt care leavers from paying Council Tax, and this is the latest part of a wider package of support intended to provide care leavers with the best possible start in their adult lives. It can feel like a cliché to say this, but our Mid Devon Leisure staff are our biggest asset. This is evidenced by the growth and market-leading quality of the services they design and deliver. For example, their outstanding learn-to-swim programmes and aquatics training reached second place in the Swimming Teacher Association awards just a few weeks ago. Our swimming pools are operating more effectively than our peers in both the public and private sector. I have no doubt this is largely down to the quality of our aquatic staff – and their passion to deliver for Mid Devon residents, as I have heard feedback to that effect. But it is not just the aquatic services. Our fitness instructors, business managers, front-of-house, and support staff are all (without exception) passionate about Mid Devon Leisure and seeing our facilities thrive. Those are not my words – those are quoted from an independent report that recently evaluated every part of our leisure services. By supporting the leisure pricing strategy, we can create stability that allows staff to innovate services further while remaining competitive and reflecting the cost-of-living challenges our community faces. The change in national VAT treatment for Council-run leisure services will allow us to absorb inflationary increases for general memberships, and hold down increases for Concessionary users. That is a significant reinvestment in our service users. Our proposed pricing is highly competitive and protects our ability to deliver new and innovative improvements to the way people across the district are able to access fitness, leisure and community sports. This Council will this week start to work on an ambitious plan to develop these improvements, and I welcome any feedback or suggestions from anyone who is as passionate about increasing access to fitness and leisure as I am.” Note: * Report previously circulated.”

14. On 1 January 2024, the Council’s new leisure service charges were implemented.

15. On 9 January 2024, the Council’s Cabinet convened. The Appellant was present at the meeting. The minutes of the meeting record him observing that the Council’s review of leisure pricing had not been the open and transparent exercise envisaged by the Council when it had moved to review pricing on 19 July 2023. The Appellant asked for such a review.

16. The minutes of that meeting record the Council’s Cabinet Member for Community and Leisure responding to the Appellant’s question as follows: “Whilst the motion as passed requested an ‘open and transparent approach’ when setting fees and charges for our Leisure service, there is a legal exemption: “Charge Strategies are Commercially Sensitive which are Exempt from publication under paragraph 3, Part 1 of Schedule 12A to the Local Government Act 1972 (as amended) as it contains information relating to the financial or business affairs of any particular person (including the authority holding that information).” In 2023/24 the Council appointed a specialist Leisure consultancy company to look at the service before any fee changes were considered. The outcome of their extensive report was that our fees could be increased when compared to the market locally and nationally. The external report formed the basis of the commercially sensitive report presented to the PDG in October 2023 as required by Motion 593 point 2. That report remains commercially sensitive and therefore exempt from publication. The fees recommended by the PDG also help to reduce the taxpayer subsidy which Motion 593 point 4 required the Council to take into account. All 42 elected members had visibility of the proposals and the opportunity to speak, comment and challenge at the PDG and previous cabinet meeting when discussed, and thorough scrutiny of the proposals was provided. The charges were published and open to public scrutiny and comment 3 months before implementation. Our charges remain very competitive in the Leisure sector and the number of Mid Devon Leisure memberships is increasing.”

17. We have been told that the Council’s leisure services are provided on a non-statutory basis. It appears from the material before us that the Council’s leisure services are funded by a combination of the taxpayer and government-funded grants, and that the Council’s charges for leisure services are discretionary in that it is within the Council’s control to determine the amount of any charges.

18. The Appellant has drawn our attention to a Fees and Charges report prepared by the Council and presented to the Council’s cabinet on 9 January 2024, at which we understand the Council’s recommended changes to fees and charges for leisure services were approved. The report states this: “1.3. ... 3 Charges that are fully within the Council’s control in determining the amount that should be charged. These are discretionary charges and are intended to offset the cost of delivering services that the Council is not mandated or under a duty to provide but instead chooses to provide for the benefit of the residents. The Council therefore has greater flexibility and full control in setting these. In some cases, the Council may choose to partially subsidise a service to ensure everyone can access the service. Examples include Leisure or Parking fees It may also choose to charge above inflationary increases the market allows, such as venue hire.”

19. The minutes of the Cabinet meeting of 9 January 2024 go on to say this: “1.6 The Council has three key principles for setting discretionary charges: 1 First, the discretionary charging arrangements for any service must recover the full cost of providing the service and include sound arrangements for income collection, in line with the Councils constitution and Medium Term Financial Plan. The full cost of provision includes the relevant share of central costs. 2 Second, the Council must comply with all legal requirements for setting charges and income generation. Where appropriate, this will override other factors to ensure the Council is not exposed to the risk of legal challenge with potential repayment of fees and other costs. 3 The Council also recognises that these two principles may need to be balanced against other relevant factors. The appropriateness of charges set may be dependent on the wider aims and context of the service. Relevant factors are set out below and officers must consider all these factors and assess their relative importance when setting charges for individual services: • Charging decisions will be taken in the context of the Council’s goals and values as set out in its Corporate Plan; • Access, affordability, and elasticity of demand should be fully considered; • Consistency with the Council’s principals of Value for Money, Equalities and Customer Access, e.g., consideration should be given to any disproportionate impact on vulnerable groups and those least able to pay; • Where services are provided on a trading basis, charges will be set at the maximum level the market can sustain without eroding demand to a point at which the overall financial position of the service offering is weakened; • Benchmarking with comparable local authorities and where charges are identified as being significantly lower than in other comparable authorities, increases should be fast tracked in order to bring them in line; • The Council should not distort local market conditions. ”

20. The Appellant alleges that the Council has taken advantage of the Upper Tribunal’s decision and submitted a claim for a VAT refund on the basis that its leisure services are a non-business operation. The Appellant says that HMRC has refunded more than £3 million to the Council.

21. It is no part of the Tribunal’s jurisdiction to determine, or make any finding to enable determination of whether, the Council is entitled to the VAT refund the Appellant says the Council has achieved.

22. We understand that the Appellant asks us to consider an apparent contradiction: the Council claims its leisure services are non-business for VAT purposes yet also treats them as a commercial operation with interests that engage section 43(2) FOIA. We address this point further below. The Request

23. On 12 January 2024, the Appellant sent this request to the Council (“the Request”): “At the Cabinet meeting on 9 Jan 2024, in answer to a question from me, regarding the review of Leisure Pricing, the Cabinet Member for Community and Leisure (Cllr David Wulff) said: "The Council had commissioned a specialist Leisure Consultancy Company to look at the service before any fee changes were considered. The outcome of their extensive report was that our fees could increase when compared to the market, locally and nationally. The external report formed the basis of the 'commercially sensitive' report presented to the PDG in October 2023, as required by Motion 593 point 2…….. The Charges were published and open to public scrutiny and comment three months before implementation. (Note: The Audio recording of this meeting has been published and this statement has been transcribed from that recording.) Please supply me with copies of these two reports - i,e. the report prepared by the “Specialist Leisure Consultancy Company” and the report prepared by the MDDC Officer which was presented to the Community Policy Development Group, for their meeting on 24 October 2023. I should also like details of the publication of the new 2024 Leisure Charges, which the Cabinet Member stated was done: “Charges were published and open to public scrutiny and comment three months before implementation” Please provide me with a copy of what was actually published and also give me the details of when, where and for how long, these prices remained published and open to public scrutiny. Will you please provide the information, in electronic format (either Microsoft Word, pdf or jpeg if you need to scan the advertisement), to me at this email address.”

24. Throughout this decision, we shall refer to the information requested as follows: a. The report prepared by the specialist leisure consultancy, Max Associates Limited, as “the Max Associates Report”. b. The report presented to the Council’s Community Policy Development Group on 24 October 2023 on the Council’s leisure pricing strategy for 2024/25 as “the PDG Report”. c. The publication of the new 2024 Leisure Charges as “the 2024 Leisure Charges Publication”.

25. On 8 February 2024, the Council responded to the Request. The Council said that: a. The Max Associates Report and the PDG Report were exempt from disclosure pursuant to s43(2) FOIA as the information in the reports was commercially sensitive: i. “ The reports [sic] that has been requested relate to the functioning of the leisure centres belonging to Mid Devon leisure. This puts them in a position where they are in a competitive market and therefore subject to commercial sensitivity. The requested reports contain detailed financial workings of Mid Devon Leisure and advice on the best strategies for pricing. If this information was placed in the public domain, it would provide competitors with the means to potentially undercut Mid Devon Leisure thus prejudicing their position in the market. A Market that in the Mid Devon Area, is highly competitive as can be seen by the private sector facilities in close proximity.” ii. In terms of the public interest balance, arguments in favour of transparency and the general public need to understand how the Council calculates certain costs was, in the case of the relevant leisure services limited. iii. Conversely: “The arguments against include first and foremost the need for companies to protect specific financial information from competitors. That such disclosure would interrupt the market and in turn impact the wider public. It is also in the public interest of the public that the council has the capacity to produce revenue from the facilities they provide. Particularly in the case of a service with the importance of leisure services .” b. In relation to the 2024 Leisure Charges Publication: “ The Agenda and Reports were published online for Cabinet on the 22nd of December with a Supplementary agenda item on Fees and Charges and is therefore exempt under section 21. ”. Reference to s21 FOIA is to an exemption from disclosure where the relevant information is already publicly available. The Council provided the Appellant with a link to the Cabinet's agenda document pack.

26. On 7 February 2024, the Appellant sought an internal review in relation to the totality of the Council’s response to the Request.

27. In his request for an internal review, the Appellant made this point specifically in relation to the 2024 Leisure Charges Publication: “ It is clear the Cabinet Member for Communities and Leisure did state, at the meeting of Cabinet on 9 January 2024, that the new leisure charges had been “published and open to public scrutiny and comment three months before implementation ”. The new charges were implemented on 1 January 2024 so they should have been published for public scrutiny and comment on, or about 1 October 2023. It was this publication/ advertisement of fees and charges that I requested – certainly not the publication with the Agenda and Reports immediately prior to the 9 January Cabinet meeting which you have referred me to. If the Cabinet Member was lying, and no such publication took place in October 2023 three months prior to the implementation on 1 January 2024, then you should make this clear. ”

28. On 11 March 2024, the Council maintained its position on internal review, in summary, as follows: a. Information in the Max Associates Report included financial information which, if disclosed, could easily be used by [its] competitors to create an unfair advantage. The Max Associates Report could not be disclosed in redacted form as only negligible information could be provided. b. In relation to the public interest balance to be undertaken on its reliance on s43(2) FOIA, the Council said this: “... the council put forward both sides of the public interest argument, but found that in the case of pricings of leisure services that the arguments in favour are, beyond transparency, limited. While we appreciate there is an interested in knowing how price rises can be justified. At this time this is tempered by an understanding that inflationary pressures are key in a lot of these decisions. Therefore it is not unreasonable to expect a price rise. However it is far more important to both the wider public and users of Mid Devon Leisure that these intrinsic services remain competitive. With this in mind the public interest clearly favours non-disclosure .”

29. In its response on internal review, the Council is silent as to whether its response in relation to the application of s43(2) FOIA to the withheld information was intended to relate to the PDG Report as well as the Max Associates Report.

30. In relation to the Appellant’s request for the 2024 Leisure Charges Publication, the Council maintained that the information was exempt from disclosure pursuant to s21 FOIA and that “ owing to the loaded question ”, the Council would not respond to that point.

31. The Appellant complained to the Commissioner. The Commissioner investigated. The Decision Notice

32. By the Decision Notice, the Commissioner decided that: a. The Commissioner was satisfied that the Max Associates Report and the PDG Report relate to the Council’s commercial activity and that disclosure of the withheld information would prejudice the Council’s commercial interests by revealing significant detail of the operation of Mid Devon Leisure to competitors. Accordingly, s43(2) FOIA is engaged. b. In relation to the public interest: i. the Commissioner recognised that the Council’s proposed increase in fees for leisure activities would impact upon affordability for local residents. The Commissioner noted that the Appellant had raised concerns about the extent of the proposed fees and the democratic process by which the Council had made its decision about those fees. ii. However, the Commissioner recognised that there is a public interest in the Council being able to pursue best value in the operation of MDL, which operates in a commercial environment with a range of nearby competitors. Any commercial disadvantage to the Council in its running of MDL might reduce the quality of services it is able to provide and, in particular, may damage the Council’s ability to subsidise less profitable activities. iii. There was no evidence available to the Commissioner that indicated that the Council was acting improperly in its handling of the matter, which would otherwise increase the public interest in disclosure. The evidence available to the Commissioner indicates that the matter had been subject to scrutiny by elected representatives, with a resultant decision made on that basis. iv. On balance, the public interest favoured maintaining exempting the withheld information from disclosure pursuant to s43(2) FOIA. c. In relation to the 2024 Leisure Charges Publication, the Commissioner identified that: i. The Appellant’s request for the 2024 Leisure Charges Publication related to a comment made by a Councillor in a cabinet meeting on 9 January 2024, in which the Councillor in question had indicated that new leisure charges for 2024 had been published three months before implementation for public scrutiny. ii. In response to that request, the Council had referred the Appellant to the published minutes for that cabinet meeting. iii. The Council had explained to the Commissioner that it had established that the comment made by the Councillor was made in error, and that, accordingly, there was no further responsive information held other than that in the minutes. iv. On that basis, the Commissioner did not expect the Council to hold information relating to a matter which had been erroneously described. The Appeal

33. By an undated Notice of Appeal and accompanying grounds of appeal, the Appellant submits, in summary, that: a. The Commissioner had failed to direct the Council to justify the application of s43(2) FOIA to all parts of the Max Associates Report and the PDG Report. b. The Commissioner had misinterpreted the Appellant’s request for the 2024 Leisure Charges Publication: the request was not for information about a statement made by the councillor in question, rather it was a request for the published information to which the Councillor had referred. It transpired that the Councillor’s statement that the information had been published three months before the charges came into effect was an error, and the Councillor had subsequently corrected the statement to the effect that the information had been published three weeks before the charges came into effect. If the information had not been published, the Council should have said so. The publication had, in fact, taken place, but the Council had made a factually incorrect statement about its timing.

34. By a Response to the appeal dated 11 November 2024, the Commissioner: a. Indicated that he would welcome the Council’s comments on certain and limited extracts of the Max Associates and PDG Reports, and applied for joinder of the Council to the appeal. b. Submitted that the actual material sought by the request for the 2024 Leisure Charges Publication was intrinsically linked to the preceding reference to the three-month publication period and, as the Council's meeting minutes of 5 March 2024 subsequently clarified, that reference was an error. As such, no information within that scope of the request would, on the balance of probabilities, be held. “It is noted that the minutes of the meeting held on 5 March 2024 say that " ... Mid Devon Leisure members with affected memberships were notified of the proposed changes on 6th December 2023 .... (underlining added)" The use of the underlined word does not suggest that the 6 December 2023 letter/notification was published and thus it would not fall within the scope of a request which clearly sought whatever information " ... was actually published ... " In the event that the Council is joined to the appeal, it is invited to confirm that this was the case in any further submissions.”

35. By a Reply to the Commissioner’s Response dated 24 November 2024, the Appellant submits, in summary, that: a. At the date of the Request, MDL’s revised leisure activity prices had already been implemented and were in the public domain. The Council was wrong to apply a blanket exemption from disclosure in relation to the entirety of the Max Associates Report and the PDG Report by reference to s43(2) FOIA. b. In relation to the public interest considerations relating to the application of s43(2) FOIA, the Council had failed to take into account the fact that it operates using public money in relation to which the Council is accountable; the Council frequently publishes information covering the costs of operating the leisure centres in question; staffing advertisements are published including salary bands; and session prices are published. The price increases appeared specifically to have targeted particular memberships: Juniors and Concessionary. The Council had also failed to take into account that the Council had resolved at a Council meeting on 19 July 2023 that the review of leisure pricing was to be conducted in an open and transparent manner. c. In relation to the 2024 Leisure Charges Publication, the Appellant had sought details of what was published, when, where, and for how long the prices in question had remained published and open to public scrutiny. The Council had not answered that request.

36. On 11 November 2024, the Council was joined to the appeal.

37. By a Response to the appeal dated 26 February 2025, the Council submits, in summary, that: a. The Council had now published parts of the PDG Report, a copy of which was attached to the Council’s Response to the appeal. b. The Max Associates Report was procured on a private and confidential basis “... specifically to complete a review of the current performance of the Service, assess market conditions and identify opportunities for improvement. The anticipated timescale of the project was 8 -10 weeks and the cost of the contract was almost £20,000. This was a significant piece of work which informed the pricing and charge strategy that the Community Policy Development Group recommended to Cabinet. ” c. The Council’s leisure facilities are a commercial profit-based exercise and therefore fall into the scope of a commercial interest. d. While the Max Associates Report contains some limited information from publicly available sources, if someone wanted to obtain a similar picture of the national leisure industry, they would have to invest considerable time and money to achieve it. Disclosure would provide a nationwide picture of the industry to the Council’s competitors free of charge. The entirety of the report informed the Council’s decisions around its leisure services and providing even part of the report would give MDL’s competitors an unfair advantage. e. Disclosure of small parts of the Max Associates Report would not serve the public interest as the information would not provide a picture of the Council's pricing and charge strategy. f. As regard the Appellant’s request for the Council’s letter of 6 December 2024 to MDL’s members, the Council does not accept that there is a document which the Appellant is entitled to receive: at no point was the letter requested. Additionally, the letter itself was not available to the wider public, only to a small group of paying members. g. The Council invites the Tribunal to dismiss the appeal for the reasons set out in the Decision Notice.

38. By a Reply to the Council’s Response dated 17 March 2025, the Appellant submits, in summary, that: a. The Council recognises its leisure services as a non-commercial and non-profit discretionary service, charged for on a service cost recovery basis not on a commercially competitive basis. b. By making a claim for a VAT refund, the Council has confirmed that it operates as a non-commercial leisure service provider. c. MDL’s competitors already have access to the Council’s detailed financial workings: the Council publishes the total operating costs and income for its leisure services in data supporting its annual accounts and quarterly updates are provided to the Cabinet in public session; the Council publishes monthly supplier payments providing details of purchases made by the Council’s leisure services; the Council publishes organisation charts showing the staffing structure of its leisure services and advertises for leisure services staff publishing pay rates. d. The Council’s leisure services have considerable advantages over commercial leisure providers in that it does not collect VAT in its prices and is able to obtain substantial government grants which have helped lower its operating costs. The services are not required to make a profit. As the Appellant puts it: “ The Appellant believes that commercial Leisure providers cannot match the no-VAT grant aided, cost recovery only, prices that the Council is able to offer. The Tribunal have been provided with a copy of the minutes of the Council SDCI Policy Development Group in which the cost per visit performance of the Leisure Service has been highlighted. It is reported that “in the financial year 22-23, this cost was £2.94 per visit, in 23-24 it was £1.30 and in the current year it stood at £1.05 and the Management team are working hard to reduce that further ”. e. The Council has failed to adduce any evidence to indicate that disclosure of the withheld information would be likely to prejudice its commercial interests. f. The Appellant rejects the proposition that the entirety of the Max Associates Report is exempt from disclosure pursuant to s43(2) FOIA when much of the information relating to the Council’s leisure service operations was in the public domain at the time of the Request: “the Centre Names and Locations, the Facilities available at each Centre, the old and new prices for activities, the staffing, the cost of staffing, the total costs of operations and income as well as the supplier payments. ” g. It is in the public interest that Council members’ statements as to the approach taken in considering the pricing of leisure services can be tested by “ seeing the evidence ”. The Cabinet Member for Leisure had been recorded by minutes of a Cabinet meeting on 14 November 2023 as making certain comments as to the consideration given by PDG and the Cabinet as to how pricing might affect certain priority groups, yet, in the Appellant’s view, the price increases for those groups ultimately resolved on by the Council had been disproportionately large. h. As regards the Appellant’s request for the 2024 Leisure Charges Publication: i. It is wrong for the Council to characterise that as a request for a letter. In fact, the Appellant had requested information relating to the prior publication of the leisure services price increase. ii. The Cabinet Member had stated that the new prices had been published three months in advance of their implementation. The Council claimed exemption under s21 FOIA and provided a link to the Cabinet agenda papers, without any further explanation or dialogue. This was bound to cause confusion, since the Appellant was being pointed to something that was clearly nothing to do with the advance publication that the Member stated had taken place. iii. The Council (and subsequently the Commissioner) had taken a very narrow view of the information request by linking it to the Cabinet Member’s ‘misstatement’ rather than the precise wording of the Request. iv. It had transpired that whilst the Cabinet Member had ‘misspoken’ as to the date of the publication, such prior publication/notification had been undertaken by the Council informing members of the increase in charges by a letter dated 6 December 2023 and displaying the new charges at all its facilities at the beginning of December, yet the Council had refused to provide this information in response to the Request. The Hearing

39. In advance of the hearing, we reviewed an OPEN bundle and a CLOSED bundle containing the withheld information. We also reviewed several documents provided by the Appellant to support his submissions, which were not in the OPEN bundle.

40. The hearing was initially listed for half a day. It became evident that half a day would not be sufficient to accommodate the Appellant’s submissions, examination of the witness called by the Council (including in CLOSED session) and closing submissions. Accordingly, the Tribunal listed the part-heard appeal for a further half day but, in the event, that extended to a full day. Thus, the hearing of this appeal has extended to one and a half days.

41. The Council called evidence from Ewan Girling, Senior Information Officer at the Council. Mr Girling was unable to speak directly to, or in detail about, the extent of the commercial prejudice which the Council maintains would be caused by disclosure of the withheld information. It seems to us that that matter should more appropriately have been addressed by the officer of the Council with responsibility for procurement, revenues, benefits or other commercial matters relating to the Council’s leisure operations. At the hearing, the Council confirmed to us that that person is Mr Dean Emery. We note that it was Mr Emery who was named on the Report for the meeting of the Community Policy Development Group as "Responsible Officer: Corporate Manager for Council Tax, Business Rate, Benefits, Corporate Recovery, Planning & Leisure”. The Council has not explained to us why Mr Emery was not called to give evidence on matters which appear to be directly within his purview and are central to this appeal, and why that responsibility was instead delegated to Mr Girling, Senior Information Officer.

42. As it is, on 9 June 2025, after the first half day hearing, the Tribunal directed the Council to file submissions and a witness statement to address in further detail: which sections of the withheld information the Council contends are exempt from disclosure pursuant to s43(2) FOIA and if so why; the commercial interest which the Council contends would, or would be likely to, be prejudiced by disclosure; and whether at the time of the Council’s refusal of the Request, any of the withheld information was already in the public domain, and if it was, whether the Council had placed it in the public domain.

43. On 25 June 2025, the Council filed the material directed, all of it in OPEN.

44. On 9 July 2025, the Appellant filed detailed responsive submissions.

45. We are satisfied that there was sufficient evidence before the Tribunal, both in OPEN and CLOSED written and oral evidence and submissions, to enable it to determine the issues in this appeal.

46. The Tribunal examined Mr Girling’s evidence in a CLOSED session of the hearing on 1 August 2025. The Council provided a written gist of that session to the Appellant and the Commissioner which read as follows: “In the Closed session the Tribunal explored with Mr Girling, by reference to his statement of 25 June 2025, the Council’s submissions (undated) and further material in the Closed bundle, the application of s43(2) Freedom of Information Act 2000 to the withheld material. The Tribunal explored that issue section by section/page by page of the withheld material from 10.45 a.m. until 2.50 p.m., with an hour's break between 1.00 p.m. and 2.00 p.m. The Tribunal asked a number of questions of Mr Girling to which he responded. The Tribunal identified an annex to a document in the withheld material in the Closed bundle and the Council agreed to make it available to the Tribunal as soon as possible. The document was provided during the break and the Tribunal will review it. The Tribunal also took the opportunity to ask Mr Girling about an issue specifically raised by the Appellant at paragraph 63 of the Appellant’s further written submissions dated 9 July 2025. The Tribunal explored with Mr Girling in evidence the Council’s reasoning for withholding the currently redacted information in the Leisure Pricing Strategy of 2024/25. The Council confirmed that the contents of the document are exempt from publication under paragraph 3, Part 1 of Schedule 12A to the Local Government Act 1972 (as amended) as the document was prepared on the basis that the charge strategies were commercially sensitive. The Council confirmed to the Tribunal that Mr Girling was the Senior Information Officer at the Council and was not at the time of refusal of the request in a role where he had responsibility for the Council’s strategies relating to Council Tax, Business Rate, Benefits, Corporate Recovery, Planning & Leisure. The Officer responsible for those matters at the time of refusal of the request was Mr. Dean Emery, now Head of Revenues, Benefits and Leisure. The Council confirmed that the Equality Impact Assessment and the table of new prices as referred to in the Leisure Pricing Strategy 2024/25 are not withheld as confirmed in paragraph 21of Mr Girling’s witness statement.”

47. The Appellant made brief closing submissions, including in relation to the gist he had received.

48. We observe that Mr Girling gave his evidence to the Tribunal with obvious care and candour, conceding points where appropriate. The Legal Framework

49. 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 43 Commercial Interests ... (1) Information is exempt information if it constitutes a trade secret. (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). (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 the interests mentioned in subsection (2). 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.

50. The import of section 58 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 a FOIA 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]. Analysis S43(2) FOIA Commercial interests

51. S43 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 : a. first: the applicable interests within the relevant exemption must be identified. b. 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”. c. 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 Interest

52. A commercial interest relates to a person’s ability to participate competitively in a commercial activity. That activity need not be profit-making. It is not the same as a financial interest, although financial interests may also be commercial interests.

53. To the extent that the Appellant submits that because the Council’s leisure services have been classed as non-business for VAT purposes or because the Council’s charges are discretionary, its leisure services cannot properly be characterised as commercial services or services which inform the Council’s commercial interests, we reject that submission.

54. We find that the applicable interest in this case is the Council’s ability to offer revenue-generating, sustainable leisure services in a competitive marketplace.

55. No-one has suggested to us that there is any relevant distinction between MDL’s position and that of the Council in terms of commercial interests. As we understand it, MDL is merely the vehicle by which the Council offers its leisure services. The Council owns and subsidises the leisure centres. Any adverse impact on membership of the centres would impact the Council’s revenues. At a Council meeting on 19 July 2023, the Council indicated that the £3 million VAT refund from HMRC was to be used to support “the past and continued subsidisation” of the Council’s leisure services. A causal link between disclosure and a prejudice which is real, actual or of substance

56. It is necessary to show a causal link between disclosure of the specific information in issue and prejudice, and the prejudice must be real, actual or of substance.

57. It is not sufficient to show that the information is commercially sensitive. Commercially sensitive information may be of interest to Service-provider A either because A is simply curious to have insight into how their competitor, Service-provider B, operates, or because it may enable A to improve their own services.

58. Prejudice to B’s commercial interests is not a necessary and inevitable corollary of A’s insight into B’s operations or improvement of A’s operations with benefit of insight into B’s operations, which, but for disclosure of the commercially sensitive information, A would not otherwise have obtained. Nor in this context is any advantage gained by A in its marketplace necessarily prejudicial to B’s commercial interests.

59. Even if disclosure does cause prejudice to B’s commercial interests, it must be a prejudice which is real, actual or of substance. Necessarily, identifying that prospect requires speculation because disclosure of the relevant information which is feared will cause the prejudice, has not occurred. But it is not enough for a party seeking to withhold information simply to assert a causal link without compelling reason or evidence. It is not enough to say that disclosure could “potentially” have such an effect. The causal link and the nature of the effect must be clearly identified.

60. It is not sufficient, therefore, to demonstrate that disclosure of the information might be embarrassing to B or cast a less than flattering light on B’s strategy or operations. Disclosure of any information which might cause real reputational damage to B, is not, even then, necessarily the same thing as prejudice to B’s commercial interests. The likelihood of prejudice

61. 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: “ 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].

62. In this case, the Council’s pleaded position is that disclosure of the withheld information would prejudice its commercial interests. That is a high bar, and, self-evidently, higher than “would be likely”. In our assessment of the Council’s position, we have considered both thresholds, that is to say, “would” and “would be likely”.

63. We observe that in a commercial environment, the timing of disclosure of information may be relevant to the issue of likelihood, as well as to the substance of the prejudice. As time elapses, the risk of substantial prejudice may diminish. That said, the correct point in time at which to assess the risk of prejudice is the point at which the public authority refuses a request, not later. The PDG Report

64. We start by analysing the PDG Report.

65. The Council has provided a redacted version of the PDG Report in the OPEN hearing bundle. We have read the unredacted version of the PDG Report in the CLOSED bundle.

66. We understand that until 25 June 2025, the Council maintained that a table of charges at paragraph 2.8.1 and the final sentence of a paragraph headed “Equalities Impact Assessment” in the PDG Report should be withheld pursuant to s43(2) FOIA but that the Council has resolved that that information should be disclosed. Accordingly, we do not address that information in our determination.

67. We note that the PDG Report itself states on its face that charge strategies are exempt from publication pursuant to paragraph 3, Part 1 of schedule 12A to the Local Government Act 1972 , as they contain information relating to the financial or business affairs of a person, including the authority holding that information. That may be the case, but it is no answer to a request under FOIA where the authority relies on s43(2) FOIA to refuse disclosure.

68. In OPEN we determine that all the withheld information in the PDG Report, (save for a small item of personal data at the end of the Report which we address separately), should be disclosed either because, for the reasons we provide in CLOSED, we do not accept that its disclosure would, or would be likely to, to prejudice the Council’s commercial interests and so we find that s43(2) FOIA is not engaged in relation to that information, or because where we find that s43(2) FOIA is engaged, we determine that the public interest in maintaining that exemption is outweighed by the public interest in disclosure. Balance of the public interests

69. Where we have found that s43(2) FOIA is engaged, we must assess the balance of the public interests as at the date of refusal of the Request: 8 February 2024.

70. The level of the risk of likelihood of disclosure causing prejudice informs our assessment of the public interest, that is to say, the lower the risk, the heavier that weighs in the balance towards the public interest in disclosure.

71. We accept that there is a strong public interest in avoiding prejudice to the Council’s commercial interests which include the Council being able to compete on a level playing field and avoiding a loss of membership, where such prejudice would be likely, in turn, adversely to impact the Council's ability to provide adequate services going forward at price levels which remaining members are able to meet.

72. However, we consider that the likelihood of such prejudice being caused by disclosure of the information where we are prepared to find that s43(2) FOIA is engaged, is low.

73. On the other side of the scales, there is a strong public interest in transparency and accountability generally relating to a public authority’s expenditure of public funds, its own financial management, governance, and effective provision of services. Such transparency and accountability promote trust and confidence in public authorities.

74. In this case, there is a strong public interest in transparency and accountability relating to the Council’s provision of competitively priced services accessible to a wide range of users with varying abilities to pay, for the benefit of public health.

75. We consider that that public interest is significantly strengthened in this case where, on 19 July 2023, the Council had publicly committed to review all leisure pricing in an “open and transparent way”. We do not consider that the method by which the Council moved to review pricing, that is to say, through the PDG before making recommendations to the Cabinet, is or should be effective to dilute the Council’s commitment to openness and transparency.

76. Moreover, we note that the Council moved that the review should have due regard for the subsidy given to the leisure services and the impact on the wider district taxpayer of any reduction. It seems to us that it is very much in the public interest that there should be openness and transparency as to whether the PDG Report had regard for that subsidy and the impact on the taxpayer, as well as the £3 million VAT refund from HMRC.

77. We also consider that there is a strong public interest in disclosure of whether and, if so, how the PDG Report took into account any aspect of the Max Associates Report in making the recommendations it did. In this regard, we have noted the Council’s Cabinet Member for Community and Leisure confirmed at the Cabinet meeting on 9 January 2024 that “ The outcome of their extensive report was that our fees could be increased when compared to the market locally and nationally. The external report formed the basis of the [PDG Report].”

78. That Member also said that “ all 42 elected members had visibility of the proposals.” It is unclear to us whether the Member meant that all 42 elected members had seen the PDG Report, that is to say the rationale for the changes, rather than just the proposed changes themselves. In our view, the public interest in transparency and accountability requires an understanding of the members’ appreciation of the rationale for the changes, which, in our view, means the PDG Report.

79. We consider that the public interest in disclosure of the PDG Report is strengthened further by the lack of clarity on the Council’s part as to the length of time for which the proposed changes were open to public scrutiny and comment before implementation. On the 9 January 2024, the Council said the proposed charges were open to public scrutiny for three months before implementation. It transpired that was not correct, and that, in fact, the proposed changes had been communicated by letter to members, if not publicised more widely, in early December 2023. The Council has not disclosed what that letter, or any other published information, indicated about the rationale for any leisure charge changes.

80. Balancing the interests we have identified, we conclude that where we have found that s43(2) FOIA is engaged, it is not strongly engaged, and the public interest in maintaining that exemption is substantially outweighed by the public interests in disclosure which we have identified. Personal data in the PDG Report

81. The Council has redacted what we assume to be personal data in the PDG Report: the names and email addresses of two of the Council’s Leisure Business Managers.

82. The Appellant has sought to bring that redaction in issue by his Reply to the Council’s Response to the appeal, assuming that the Council relies on s40(2) FOIA (personal data), and countering that assumed position by pointing to other material which he says shows the Council being comfortable to publish the names of the individuals in question.

83. This issue forms no part of the Appellant’s grounds of appeal. We have heard no submissions on it. It is not an issue for determination in this appeal. If the Appellant wishes to challenge the redaction, he must do so separately. The Tribunal does not order disclosure of the information. In conclusion on the PDG Report

84. We find that the Commissioner erred in deciding that the Council was entitled to withhold any information in the PDG Report pursuant to s43(2) FOIA.

85. To that extent, the Decision Notice is not in accordance with the law. The Max Associates Report

86. It is instructive to set out here the Council’s written submission of 25 June 2025 relating to the Max Associates Report: “1. It is clear that the public leisure industry faces ongoing challenges post Covid -191. It was within the post-Covid 19 situation that Mid Devon Leisure (as it then was) commissioned the Max Associates Report in 2023.

2. The Report was a significant investment which looked in-depth at demographics, gender, age populations, socio-economic groups, key health statistics, ethnicity, and price comparisons. It also detailed quite precisely the market and growth opportunities. The Report also highlighted the national picture for leisure and contained financial information which remains market sensitive.

3. A look at the Max Associates website clearly shows that it is a market leader in strategic outcomes planning models, feasibility studies, alternative management options, leisure strategies and leisure procurement. It also has a number of local authorities as its clients.

4. The nature of the information contained in the Max Associates Report (and by association the Cabinet Report) would if disclosed to a competitor be liable to cause significant harm to Mid Devon Leisure. The kind of information in the Report is technical, unique and was obtained by a not unsubstantial investment. The Report has not even been disclosed widely within the Second Respondent’s organisation which indicates the ‘secret’ nature of the information. The suggestion that the Second Respondent’s Leisure Centres do not operate as commercial ventures/activities as a result of being classified as non-business for VAT purposes does not hold water. ‘Non-business’ for VAT purposes is not the same as non-commercial and allows a local authority which provides ‘in-house’ leisure centres to treat some of its services as non-business for VAT purposes.

6. The legal challenge to the VAT position has resulted in local authorities being able to apply the non-business treatment to the supply of leisure services. Any other income received by a local authority is not affected by this change3.

7. The analysis and projections of Max Associates of the strategic documentation provided and information gathered has informed some of Mid Devon Leisure’s decisions and behaviour. That information may continue to inform Mid Devon Leisure’s activities for some time to come. To disclose it would prejudice Mid Devon Leisure's commercial activities and impact on its market position. It would provide competitors with valuable information about the leisure market and growth opportunities.

8. On the basis of the above and the witness statement provided it is clear that the Max Associates Report (and Cabinet Report) was at the time of the refusal, and is still even today, commercially sensitive and if released would prejudice Mid Devon Leisure and the Second Respondent.”

87. For the reasons which follow, we have determined that a small part but not all the information in the Max Associates Report is exempt from disclosure pursuant to s43(2) FOIA. Much of our reasoning for that determination must be set out in CLOSED so as not to disclose the withheld information pending compliance by the Council with the Substituted Decision Notice on the face of this decision or any successful appeal by any party in relation to any part of this decision.

88. We start our analysis by making three observations.

89. First, we observe that throughout its submissions and evidence, the Council has indicated that the Max Associates Report is private and confidential, and that it was procured at a cost to the Council, with, so far as we understand it, an implication that, consequently, only the Council should benefit from it. The Council’s position is that to the extent that the Report contains publicly available information, that information should still not be disclosed because the Council paid for Max Associates to collate and present that information according to Max Associates’ own methodology. The Council says that in those circumstances, disclosure would provide competitors with an unfair advantage.

90. None of those matters is relevant to our determination of whether disclosure of any information in the report would be likely to prejudice the Council’s commercial interests.

91. It might be thought unfair for a competitor to “get something for nothing” but that, of itself, does not, in our view, cause any prejudice to the Council’s own commercial interests, and it is that issue which we must determine.

92. Second, as regards confidentiality, it is notable that the Council has not sought at any stage to exempt the Max Associates Report from disclosure under FOIA by reference to confidentiality. We explored this issue with Mr Girling in CLOSED session. Based on Mr Girling’s answers and the material before us, we are unable to, and do not, determine whether disclosure of the Max Associates Report would, or would be likely to, prejudice Max Associates’ commercial interests.

93. Third, as with the PDG Report, the Council says that disclosure of the information in the Max Associates Report would, as opposed to would be likely to, prejudice the Council’s commercial interests. As we have already observed, that is a high bar. In our analysis of the Max Associates Report, we have considered both thresholds.

94. We address each section of the Max Associates Report by reference to the Council’s position as set out in Mr Girling’s witness statement of 25 June 2025. We have also taken into account Mr Girling’s oral evidence in CLOSED session about each section. Sectional Assessment of the Max Associates Report The title page of the Max Associates Report

95. The title page of the Max Associates Report discloses nothing which would, or would be likely to, prejudice the Council’s commercial interests. Accordingly, s43(2) FOIA is not engaged in relation to that information. Section 1

96. The Council’s position in relation to the introduction and table of contents is this: “ While it is conceded that this section is unlikely to be classed as commercially sensitive information on its own. It is believed that, based on the limited nature of the information provided that this would give little or no information to the Appellant of value. ”

97. Whether or not this information would give the Appellant information of any value, is irrelevant to our determination of whether its disclosure would, or would be likely to, prejudice the Council’s commercial interests.

98. For the reasons we set out in CLOSED, we have concluded that neither disclosure of the introduction nor the majority of the table of contents would, nor would be likely to, prejudice the Council’s commercial interests. Accordingly, we find that s43(2) FOIA is not engaged, save in relation to two minor items in the table of contents. Section 2 of the Max Associates Report

99. The Council’s position in relation to Section 2 is this: “Information about both national and local strategies and then interprets them to formulate a strategy specific for Mid Devon Leisure. The analysis and interpretation of these strategies are commercially sensitive as they are intrinsically linked to Mid Devon Leisure’s ability to function in a competitive market. The analysis of the strategic documentation provided would, if disclosed, expose Mid Devon Leisure's position prematurely allowing competitors to amend their own strategies. A private company would not release a long-term strategic document. It is reasonable to conclude that competitors could gain access to this information and use it as stated above. This shows a causal link between release of the information in this section and the prejudice that would be caused to Mid Devon Leisure. While it is acknowledged that some of the information within this section is publicly accessible in different locations (e.g. Sports England website, Mid Devon District Council website, xx [sic] ) it is the bringing together and analysing of this disparate information into the Max Associates Report that makes the information commercially sensitive. Max Associates compile their analysis at significant cost, taking substantial time and effort. If disclosed to competitors it would effectively imply the strategies and analysis that in itself is commercially sensitive and not available in 1 document. It is the work done by Max Associates that adds the overall commercial sensitivity to the report irrespective of the individual pieces of information.”

100. For the reasons we set out in CLOSED, we have concluded that disclosure of Section 2 of the Max Associates Report neither would, nor would be likely to, prejudice the Council’s commercial interests. Accordingly, s43(2) FOIA is not engaged. Section 3 of the Max Associates Report

101. The Council’s position in relation to Section 3 is this: “Includes aggregated demographic and healthcare data and comparative analysis of other districts. This information is commercial in nature as it is linked to Mid Devon Leisure’s clientele and is used to provide strategic recommendations later in the chapter in relation to the demographics. As with section 2, some of the demographic information is publicly available, it is the added value provided by the Max Associates evaluation that imparts a commercial sensitivity that goes beyond the source material. This analysis and the subsequent recommendations could point competitors to the target clientele, allowing competitors to gauge their own offers to counter Mid Devon Leisure, thus reducing revenues and prejudicing the business. This is not an unreasonable assumption considering the competitive nature of the leisure market.”

102. For the reasons we set out in CLOSED, we have concluded that disclosure of Section 3 of the Max Associates Report neither would, nor would be likely to, prejudice the Council’s commercial interests. Accordingly, we find that s43(2) FOIA is not engaged. Section 4 of the Max Associates Report

103. The Council’s position in relation to Section 4 is this: “Includes a variety of information with varying levels of commercial sensitivity. Sections 4.1 to 4.4 are detailed market analysis, the vast majority of which is not in the public domain. It provides specific details of the market that Mid Devon Leisure is functioning in. This is further broken down into site-based analysis. This is information that is highly sought after by competitors in the area and would amount to providing them with free analytics upon which the Second Respondent has based its leisure strategy. The primary threat of harm to Mid Devon Leisure by placing these subsections in the public domain is that competitors and other facilities would use this information to mimic or improve upon the Mid Devon Leisure overall strategy. Allowing them to undermine Mid Devon Leisure’s financial position and thus causing prejudice to the Second Respondent. Sections 4.5 to 4.9 are commercially sensitive as this builds on facility specific analysis. This looks at latent demand of the 3 leisure centres including figures designed to show Mid Devon Leisure specifically who they should be targeting, when, how and why. This is information that is commercial in nature and there would be expectation of confidentiality around the information in these sections. Disclosure would prejudice Mid Devon Leisure in a clear and tangible way. This would be providing competitors with exactly who Mid Devon Leisure is aiming to capture within the market and how to gain the individual customs. A competitor would almost certainly be able to use this to their advantage adjusting strategies, changing offers in order to bring in customers who would otherwise have used Mid Devon Leisure.”

104. For the reasons we set out in CLOSED, we have concluded that disclosure of some but not all of Section 4 of the Max Associates Report would be likely to prejudice the Council’s commercial interests. Accordingly, s43(2) FOIA is engaged in part. Section 5 of the Max Associates Report

105. The Council’s position in relation to Section 5 is this: “The Financial Review. The information includes a comprehensive and detailed financial review of the Second Respondent’s Leisure service. The information within the financial review goes into specific details around the services that are provided, highlighting weak spots within the Leisure Service financial model and performance benchmarking. The information within this section is exempt from disclosure. This information is then utilised by Max Associates in later parts of the section where it provides specific recommendations to improve Mid Devon Leisure’s revenue stream and how to target for maximum profitability. If this information was placed in the public domain, competitors could potentially utilise this to adapt their own marketing to exploit the areas where the leisure facilities are most likely to be making a profit. This would impact the leisure facilities abilities to generate revenue. By placing the information in the public domain, competitors will be able to scrutinise details of Mid Devon Leisure’s financial model. It is clear there is a causal link between the release of recommended strategies to improve the Leisure service profitability and competing leisure services amending their own strategies to take advantage of the released recommendations in the report.”

106. For the reasons we set out in CLOSED, we have concluded that disclosure of some but not all of Section 5 of the Max Associates Report would be likely to prejudice the Council’s commercial interests. Accordingly, we find that s43(2) FOIA is engaged in part. Section 6 of the Max Associates Report

107. The Council’s position in relation to Section 6 is this: “A digital strategic review. It provides detailed insights into data driven processes, critical infrastructure, and Mid Devon Leisure’s approach to digital services. The Second Respondent contends that this section is commercially sensitive. This section concentrates on digital strategy and highlights the strengths and weaknesses of the digital infrastructure in place at the time of the report. The information is commercial in nature as it relates to a commercial wing of the Second Respondent and provides details and analysis that Mid Devon Leisure would have an expectation that this would not be placed in the public domain. This information could potentially prejudice Mid Devon Leisure as it provides analysis of perceived strengths and weaknesses with the strategy itself. Something that could, if placed in the public domain, be exploited by competitors to highlight efficiencies within their own business model. Something they could only be able to do with active competitor research of their own. To some degree the section’s review of critical digital infrastructure could present a potential cyber security risk, which if exploited could cause real harm to Mid Devon Leisure, the Second Respondent and the supply chain. This could also result in reputational damage to Mid Devon Leisure and the Second Respondent.”

108. We consider that the Council’s reference to disclosure of this part of the Report presenting “to some degree” a potential cyber security risk with attendant harm to MDL, the Council, and the supply chain, as speculative.

109. For the reasons we set out in CLOSED, we have concluded that disclosure of the information in Section 6 of the Max Associates Report neither would, nor would be likely to, prejudice the Council’s commercial interests. Accordingly, we find that s43(2) FOIA is not engaged. Sections 7 and 8 of the Max Associates Report

110. The Council’s position in relation to Sections 7 and 8 is this: “Provides an asset and quality review, including showing maintenance strategies through to 2050. This is a long-term strategic document that highlights improvements in the infrastructure of Mid Devon Leisure. It reiterates concerns raised in prior sections and looks at areas of improvement. As this relates to information of a commercial nature and looks at long term strategies, the Second Respondent believes that it is the case that the information is commercially sensitive. The projected costs relating to the infrastructure improvements and maintenance costs is included in these sections. Having this information would give both competitors and contractors an unfair advantage in competition and negotiations respectively. Competitors could use access controls and quality standards as an opportunity to highlight better practices. This could lure customers away from Mid Devon Leisure and reduce revenues. Negotiators would likely have seen the negotiating position and adjust their prices accordingly. Both these circumstances would reduce revenues for Mid Devon Leisure and potentially impact on services.”

111. For the reasons we set out in CLOSED, we have concluded that disclosure of the information in Sections 7 and 8 of the Max Associates Report neither would, nor would be likely to, prejudice the Council’s commercial interests. Accordingly, we find that s43(2) FOIA is not engaged. Section 9 of the Max Associates Report

112. The Council’s position in relation to Section 9 is this: “This presents strategic recommendations that at the time of the request were not available to inspect. The information is in a confidential report, and this is not information the Second Respondent would expect to be placed in the public domain as such it falls under the definition of commercial sensitivity. By placing the list of strategic recommendations of Mid Devon Leisure in the public domain it is effectively allowing the competitors and vendors to either mimic, counter or price gauge depending on the recommendation.”

113. For the reasons we set out in CLOSED, we have concluded that disclosure of some but not all of Section 9 of the Max Associates Report would be likely to prejudice the Council’s commercial interests. Accordingly, we find that s43(2) FOIA is engaged in part. Public interest

114. Where we have found that s43(2) FOIA is engaged, we must consider whether the public interest in maintaining that exemption is outweighed by the public interest in disclosure. We must consider that issue as at the date of refusal of the Request: 8 February 2024. A small part of our reasoning is provided in CLOSED.

115. In this case, we find that there is a strong public interest in avoiding prejudice to the Council’s commercial interests which include the Council being able to compete on a level playing field and avoid a loss of membership, where such prejudice would be likely, in turn, adversely to impact the Council's ability to provide adequate services going forward at price levels which remaining members are able to meet.

116. For the reasons we have given in CLOSED, in relation to certain of the information where we have found that s43(2) FOIA is engaged, we have found that it is not strongly engaged. It appears to us in those cases that the Council’s position is, in reality, that disclosure “might” cause prejudice to its commercial interests, or that disclosure has the “potential” to cause such prejudice. In those cases, we have assessed that risk as low. We bear in mind that the lower the risk of the likelihood of any prejudice of substance, the less that weighs in the balance towards maintaining the exemption and the more it weighs in the balance towards the public interest in disclosure.

117. We have assessed that risk as low because it seems to us that much of the withheld information is so germane to the Council’s own offering, infrastructure and operations that it is unlikely to have any real value in a competitor’s hands. By that we mean that we consider there is little in the withheld information which a competitor could exploit in any truly competitive way so as to prejudice the Council’s ability to compete in the relevant marketplace. The information might prompt a competitor to improve their own offering but not necessarily to the commercial detriment of the Council.

118. Balanced against the public interest in avoiding prejudice, is a strong public interest in transparency and accountability generally relating to a public authority’s expenditure of public funds, its own financial management, and governance, and its effective provision of services for the public good. Such transparency and accountability promote trust and confidence in public authorities.

119. The public purse substantially funds the Council’s leisure services by a combination of: subsidies in the sum of £1.4m a year; government funding; and the £3 million VAT refund from HMRC. There is a strong public interest in understanding not only how public monies are spent and invested in this context but the quality of analysis and deliberation which supports that expenditure and investment. To the extent that anyone might make criticism of those things, that does not detract from there being a strong public interest in disclosure: critical discourse should work to improve analysis and deliberation.

120. These subjects have, evidently, throughout 2023 and the early part of 2024, been the subject of sustained consideration and debate in the Council, with demand for, and acknowledgement by at least certain members of the Council of the need for, openness and transparency around them.

121. In that context, save in relation to specific data we have identified in CLOSED where we find the risk of prejudice to be low, we find that there is a particularly strong public interest in transparency as to the analysis in, and the findings of, the Max Associates Report: it was commissioned at not insignificant expense to the public purse; it was presented as an independent service review undertaken by specialists, it being implicit that those factors gave it particular value in the Council’s deliberations in the public interest; it was commissioned and said to inform the PDG Report and the recommendations to Cabinet on leisure service charges; and it was expressly said by the Council to have been taken into account in the review of leisure charges strategy and the future planning of leisure services generally for the benefit of public health.

122. We consider there is a strong public interest in understanding the extent to which information in the Max Associates Report informed the review of the leisure charges strategy and the planning of leisure services generally.

123. Save in relation to limited aspects of the Max Associates Report, which we have addressed in CLOSED, we consider that to give real meaning to the public interest in transparency and accountability concerning the Council’s decision-making processes, the public interest requires disclosure. In conclusion on the Max Associates Report

124. We find that the Commissioner erred in deciding that the Council was entitled to withhold all the information in the Max Associates Report pursuant to s43(2) FOIA.

125. To that extent, the Decision Notice is not in accordance with the law. The 2024 Leisure Charges Publication

126. We can take this issue shortly.

127. In our view, the Request for this information was clear. The Appellant was asking for the publication of the new 2024 Leisure Charges, specifically “ what was actually published” and “when, where and for how long, these prices remained published and open to public scrutiny.”

128. It is irrelevant that a Councillor may have mis-stated the date of publication. The Appellant was not asking for information about what the Councillor had said or not said, and whether what he might have said was correct. It does not matter that the Appellant did not ask for a letter dated 6 December 2023. Both the Council and the Commissioner have construed this part of the Request so narrowly as effectively to insist upon its defeat. There is no justification for that.

129. The Council was wrong to refuse to disclose the information sought by this part of the Request.

130. The Council remains bound to answer this part of the Request in compliance with the Council’s duties under s1(1) and s17(1) FOIA.

131. To the extent that by his Decision Notice, the Commissioner concluded that the Council did not hold the information requested, the Decision Notice is not in accordance with the law. Conclusion

132. For the reasons we have given and to the extent stated, we find that the Decision Notice was not in accordance with the law.

133. Accordingly, the appeal must be Allowed in part.

134. The Council must comply with the Substituted Decision Notice on the face of this judgment.

135. For the Appellant’s benefit: the OPEN and CLOSED versions of this decision have been provided in draft form to the Commissioner and the Council before their finalisation for promulgation, in order that either of those parties may identify whether the Tribunal has inadvertently included any CLOSED material in the OPEN decision, and may identify any typographical errors. Neither party identified any material in the OPEN decision which should remain in CLOSED, and the Commissioner identified a typographical error which has been corrected. The Council sought clarification around the scope of certain data in Section 5 of the Max Associates Report which we have found the Council is entitled to withhold, which we have addressed in the CLOSED decision. Signed Judge Foss 22 December 2025