Nicolas Roberts Publications Ltd v The Information Commissioner & Anor

Rule 14(6) Directions

1. All three parties to this appeal applied for Orders under Rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

2. A Direction was made by Judge McKenna under Rule 14(6) on 18 February 2022 on the application of the Information Commissioner (“the Commissioner”), that certain information in the Commissioner’s Response would not be disclosed to anyone but the Commissioner because “to do otherwise would defeat the purpose of these proceedings”. Following an application from the Council, certain paragraphs of its Response were also made confidential to the Tribunal and the parties. The Tribunal finds that it is able to issue a full reasoned Decision on this appeal without disclosing any of that information.

3. A further Direction was then made by Registrar Bamawo on 9 September 2022 on the application of the Appellant, for " the blog itself, any quotations from it, and any paragraphs making reference to fraudulent behaviour on the part of Nicolas Roberts Publications" to be removed from the open bundle. Various redactions were made to the open bundle as a result of these Directions and an un-redacted closed bundle made available to all parties confidentially.

4. The Tribunal decided in a preliminary order made on 27 April 2023 that it must refer in this Decision to the full text of the blog and the allegations made by the Council. The reasons for that decision are set out in the ruling. No party applied for permission to appeal that ruling.

5. The Appellant then applied for an anonymity order to be made in respect of this Decision under Rule 14(1)(b). That application was refused by this Tribunal on 22 June 2023.

6. The Appellant applied for permission to appeal the refusal of an anonymity order on 21 July 2023. A decision has not been made on that application at the time of issue of this decision to the parties. This Decision is therefore issued subject to a separate Directions and an Interim Rule 14 Order that it shall not be promulgated or published by the Tribunal until any appeal against the refusal of anonymity is determined, and that it shall not be disclosed or published by any party to any other person until it has been promulgated or published by the Tribunal (see separate Directions and Interim Rule 14 Order).

7. A draft of this substantive Decision was issued in advance to the Council and the Commissioner under embargo in accordance with the Tribunal’s normal process to enable them to identify, before issue to the Appellant, whether it disclosed in error any withheld information. The Commissioner responded that the Decision did not contain any reference to the withheld information. The Council did not respond. Paragraphs 6 and 7 have subsequently been added to the draft, but no changes made from paragraph 8 below onwards. Background

8. The Appellant provides resources to schools on a subscription basis. Its Managing Director is Mr Nicolas Roberts.

9. The Second Respondent, Devon County Council (“the Council”), provides financial management services to over 200 schools in Devon, including day to day management of their finances and financial due diligence. It hosts an Education Finance blog. The blog is aimed at schools, but at the relevant time, it was also, unbeknownst to the Council’s Finance team, accessible by the general public.

10. On 12 December 2019, the Council posted a “Payments & Revenue Notice to Schools” on the blog as follows: “DC's payments team have identified a supplier that we believe is targeting schools in order to claim funds fraudulently. “We require all schools to be cautious when dealing with NICOLAS ROBERTS PUBLICATIONS. This supplier appears to be invoicing schools directly and will often use teachers names in way of showing authenticity. When this is investigated further the teacher involved has no dealings with the company or services mentioned. The invoice is normally for subscription to resource websites on school and home computers. As always, please be vigilant and cautious and if you require any assistance please get in touch”]

11. On 8 June 2020, the Appellant made the following request for information under the Freedom of Information Act 2000 from Devon County Council (“the Council”) (I shall refer to the request, as subsequently narrowed by the Appellant, in this Decision as “the Request”): “Please confirm (a) whether or not you hold information supporting the allegation made in your Education Finance Blog of 12th December 2019 referring to Nicolas Roberts Publications, '’When this is further investigated the teacher involved has no dealings with the company or services mentioned' and (b) if that is the case, please communicate to us all the relevant information supporting the allegation within twenty working days. “Until evidence is provided, tested and proved, we require that the blog is removed from public view with immediate effect, together with written confirmation that this has been done.”

12. Mr Roberts confirmed that the Request did not involve personal data about himself.

13. The Council confirmed on 15 September 2020 that the post had been removed and responded formally to the Request on 16 October 2020. The Council neither confirmed nor denied whether it held information relevant to the Request in reliance on section 40(5B)(a)(i) FOIA (personal data).

14. In response on 19 October 2020, the Appellant clarified its request, saying that it was not requesting the names of individuals and that it was requesting: “…the evidence Devon Council used to justify its 12th December 2019 blog, in which it suggested we were 'targeting schools to claim funds fraudulently' and, in particular, we are requesting the identities of the schools who were 'further investigated' and had had 'no dealings with the company or services mentioned.’ The names and address details of the schools, the dates the evidence was provided and the precise word-for-word content of that evidence, with individual names removed as and where appropriate, is quite adequate for our purpose…”

15. The Council’s decision was not changed on internal review. The Appellant complained to the Commissioner, protesting that it had a fundamental right to defend itself against the allegations made in the blog post and to see the evidence relied upon by the Council so that it could respond. The Appellant complained about delays at the Council in dealing with the Request.

16. The Commissioner issued Decision Notice IC-89838-X9N2 on 28 October 2021. The Commissioner decided that a different exemption, section 40(5A) applied and that the Council was correct to neither confirm nor deny that it held the information on the basis that the information would be personal data of the Appellant. No steps were required. Appeal

17. The Appellant appealed to the Tribunal, disputing the Commissioner’s reliance upon section 40(5A).

18. In its Response, the Commissioner advised the Tribunal that its position was now that section 40(5A) was not engaged [paragraph 21]. It submitted that the Tribunal would need to reach a view on the exemption originally relied upon by the Council (section 40(5)(B)) and that the Council should be joined to the appeal and given the opportunity to rely on another neither confirm nor deny (“NCND”) exemption. The Commissioner added that if the Tribunal found that no NCND exemption applied, it should dispose of the appeal by substituting steps requiring the Council to confirm or deny holding the requested information.

19. The Council was joined on 18 February 2022. In its Response, the Council did not seek to rely on section 40(5B). It relied instead on the NCND exemptions in sections 31(3) and 43(3) FOIA. The Council’s submissions are addressed further in the Discussion below.

20. In Reply, the Appellant submitted that by refusing to provide evidence to substantiate its allegations, the Council not only damaged the Appellant but also undermined trust amongst other genuine suppliers, thereby damaging the legitimate market for schools’ supplies and the schools’ and Council’s commercial interests. The Appellant submitted that the Council’s argument that “suppliers’ confidence would be eroded if it did not apply NCND is invalid” because “the supplier’s identity has already been revealed” (page 77). The Appellant submitted that the reporting of potentially fraudulent activity was in the public interest only if “the facts reported are true” and that keeping reports of suspected fraudulent activity secret was contrary to the aims of the freedom of information legislation and encouraged “spurious complaints” and a lack of accountability. The Appellant doubted the Council’s assertion that it was not aware that the blog could be accessed by the public and submitted that the Council should have contacted it about the concerns before publishing its allegations.

21. The Appellant provided details of a number of other complaints made about it since 2002 in relation to which Local Education Authorities or the National Anti-Fraud Network had subsequently confirmed that it was a legitimate supplier.

22. In final submissions, the Council submitted that the Appellant’s Reply addressed the substantive exemptions in sections 31 and 43 and not NCND. The Commissioner made no further submissions in relation to sections 31(3) or 43(3).

23. The parties consented to the appeal being decided on the papers without a hearing. The Tribunal was satisfied that it could properly determine the issues without a hearing and that it was fair and in the interests of justice to do so. In reaching its decision, the Tribunal took into account all the evidence and submissions before it, even if not expressly referred to in this Decision.

24. The Tribunal had before it open and closed bundles, both numbering pages 1-99. The bundles were identical except that certain redactions were made to the open bundle (see discussion of the Rule 14 Orders in paragraphs 1 to 5 above). Numbers given in square brackets in this Decision are to pages of the bundle. The papers included two witness statements from Bradley Hutton, Principal Accountant for the Council. Law

25. As noted above, the Commissioner’s position is now that section 40(5A) is not engaged. The Council do not dispute this. The Council also does not now seek to rely upon section 40(5)(B). These exemptions are therefore no longer in issue and will not be addressed in this Decision.

26. Section 1(1) FOIA provides that: “(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.”

27. Section 2(1) FOIA provides: “(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either – (a) the provision confers absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1)(a) does not apply.”

28. Section 31, Part II FOIA provides: “(1) Information… is exempt information if its disclosure under this Act would, or would be likely to, prejudice— (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, … …… (3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).”

29. Section 43, Part II FOIA provides: “(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).”

30. Neither section 31 nor section 43 are absolute exemptions.

31. The powers of the Tribunal in determining this appeal are set out in section 58 FOIA, as follows: “(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.”

32. The Tribunal stands in the shoes of the Commissioner and takes a fresh decision on the evidence before us. The Tribunal does not undertake a review of the way in which the Commissioner’s decision was made. Discussion and Reasons Section 31(3): Prevention and detection of crime

33. The Council submitted that in order to provide effective financial due diligence to schools, school staff and the Council needed to be able to “communicate freely” any concerns about financial irregularities and potentially fraudulent suppliers. The Council submitted that confirming or denying to the Appellant whether or not it held the requested information would amount to public disclosure of the fact that the Council and some schools had concerns about the Appellant. It submitted that school staff would be less likely to share their concerns about suppliers if there was a risk that these would be shared with the supplier or published, and that this would be likely to make it more difficulty to identify, investigate and prevent financial irregularity and fraud in future.

34. In his witness statement, Mr Hutton reported that five schools had confirmed that they would be reluctant to report possible fraud if details of such investigations were made public. He suggested that it would be unhelpful to confirm or deny whether evidence was held in relation to allegations made about a supplier because there would be little context and the evidence might not, at the stage when a request was made, be sufficient to support a fraud prosecution.

35. The Tribunal did not find the Council’s submissions persuasive. The Tribunal recognised the importance of Council and school staff being able to communicate freely their concerns about suppliers, and that school staff might be discouraged from reporting to the Council if they thought their suspicions would be made public. If the Council had not yet published the fact that it had concerns about the Appellant, confirming in response to a FOI request that such information was held, might alert the Appellant to an investigation and make the investigation more difficult.

36. However, in this case, the Council had already disclosed publicly, albeit it unintentionally, through its blog, that it had concerns about potentially fraudulent activity by the Appellant. Any prejudice which might be caused to free communication between Council and school staff, or to the efficacy of any investigation into the Appellant, by publishing these allegations, had already been done. Confirming that the Council held (or did not hold) information supporting the allegations was unlikely to cause further prejudice. The duty to confirm or deny would not require the Council to identify what information was held, if any, nor the source of that information. Section 43(3): Commercial Interests

37. In relation to section 43(3), the Council submitted that confirming or denying whether it held the requested information was likely to prejudice the commercial interests of schools, because fewer organisations would be prepared to do business with them because of a fear that allegations of financial irregularity and fraud would be made public under FOIA. This would reduce competition in the market for school suppliers and increase costs, and schools would be more vulnerable to fraud.

38. The Council also submitted that confirming or denying was likely to prejudice the Council’s commercial interests because schools would be less likely to choose the Council to provide their financial management services, thereby reducing the Council’s revenue and the quality of its services. Schools would be reluctant to report concerns about suppliers to the Council, which would make the Council less effective at identifying and preventing fraud than its many private sector competitors.

39. Again, the Tribunal was not persuaded by these submissions in the circumstances of this case. The Council had already revealed publicly that it had concerns about the Appellant. If suppliers were less likely to do business with schools, or schools were less likely to buy financial management services from the Council, because of a fear that concerns about potentially fraudulent activity would be made public, that prejudice had already been caused by the Council, outside of the FOIA regime.

40. Furthermore, the Tribunal found that a private provider of financial management services was also likely to publish warnings to schools about potentially fraudulent suppliers, and that this would be regarded by schools as helpful, making the Council’s services more, rather than less, attractive. The Tribunal understands, from the specialist knowledge of one of its lay members, that schools are often targeted by fraudulent suppliers. Conclusion

41. As the Tribunal found that neither section 31(3) nor section 43(3) FOIA were engaged, we did not go on to consider the public interest.

42. The appeal is allowed. Decision Notice IC-89838-X9N2 is not in accordance with the law and the Tribunal issues a substitute Decision Notice in the terms set out at the start of this Decision.

43. The Tribunal makes no finding about the applicability of any exemption under FOIA to the requested information nor the balance of public interest in that regard. We make no comment on the application of section 31(3) or 43(3) generally to requests from suppliers for information about fraud investigations by the Council. Our decision is limited to the circumstances of this appeal. Signed Judge CL Goodman Date: 06/12/2023