Dey v Information Commissioner [2007] UKIT EA_2007

Appeal Number: EA/2007/0057

Appeal Number: EA/2006/0057

Freedom of Information Act 2000 (FOIA)

Decision Promulgated: 16 April 2007

BEFORE

INFORMATION TRIBUNAL DEPUTY CHAIRMAN

Humphrey Forrest

and

LAY MEMBERS

Paul Taylor

Dave Sivers

Between

Malcolm James Dey

and
INFORMATION COMMISSIONER

and
Office of Fair Trading

Appellant

Respondent

Additional Party

Determined without a hearing
Decision

The Tribunal upholds the Decision Notice dated 25 July 2006 and dismisses the appeal.

Reasons for Decision

Introduction

1. Mr Dey had purchased goods from a company trading over the internet. The
company was based in France but had an address in Hammersmith. He was
dissatisfied with the service received. He complained to Hammersmith and Fulham

Appeal Number: EA/2007/0057

Trading Standards department about the company. They investigated his complaint,
and provided him with information about the number of complaints they had received
about the company. They indicated that because the company was based outside
the United Kingdom, reference would have to be made to the Department for Trade
and Industry.

2. Mr Dey contacted the DTI. At the time a branch of the DTI called Consumer Direct
dealt with him. On 11 August 2005, Mr Dey requested the following information from
Consumer Direct (the DTI) under section 1 of the Freedom of Information Act (FOIA):

The number of complaints they had received regarding the company

The number of complaints which they had passed on to Trading Standards

The number of complaints they had passed on to Hammersmith and
Fulham’s Trading Standards department.

3. The DTI initially responded by refusing the request on the ground that the information
was exempt under section 43(2) FOIA, the protection of commercial interests.

Section 43 states

(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).

4. Under section 2 FOIA that is a qualified exemption and only applies to the extent that:

2 (2) (b) in all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.

5. Mr Dey sought a review of that decision, arguing that there were strong public
interests in revealing the information because it could help protect the public against
unscrupulous traders. The DTI reviewed their decision and confirmed it.

6. On 29 September Mr Dey complained to the Information Commissioner about the
DTI’s refusal to provide the information. The Commissioner had some
correspondence with the parties, in the course of which the DTI explained the
reasons for their belief that the public interest in maintaining the exemption
outweighed the public interest in disclosure. In April 06, the functions of Consumer
Direct, which included dealing with Mr Dey’s request or information, were transferred
from the DTI to the Office of Fair Trading (OFT) (and it is therefore the OFT that have
been joined as the Additional Party to this appeal). They reviewed the DTI’s position
on the request and confirmed it. The OFT informed the Commissioner that as well as

Appeal Number: EA/2007/0057

relying on the exemption in section 43, they also wished to rely on the exemption in
section 44. Section 44 is an absolute exemption; it is not subject to the public interest
test in section 2.

Section 44 FOIA states:

Information is exempt information if its disclosure (otherwise than under this Act) by
the public authority holding it –

(a) is prohibited by or under any enactment, …

7. The OFT relied on section 237 of the Enterprise Act 2002 as imposing such a
prohibition on disclosure.

Section 237 Enterprise Act 2002 states:

(1) This section applies to specified information which relates to –

(a) the affairs of an individual

(b) any business of an undertaking.

(2) Such information must not be disclosed –

(a) during the lifetime of the individual, or

(b) while the undertaking continues in existence,
unless the disclosure is permitted under this Part.

(3) But subsection (2) does not prevent the disclosure of any information if the
information has on an earlier occasion been disclosed to the public in circumstances
which do not contravene –

(a) that subsection;

(b) any other rule of law or enactment prohibiting or restricting the disclosure of the
information.

(6) This Part (except section 244) does not affect any power or duty to disclose
information which exists apart from the Part.

Appeal Number: EA/2007/0057

Section 238: Information

(1) Information is specified information if it comes to a public authority in connection
with the exercise of any function it has under or by virtue of –

(c) Part 1, 3, 4, 6, 7 or 8.

8. Sections 239 to 243 of the Enterprise Act set out various circumstances, or
“gateways”, through which a public authority may, despite the general prohibition on
the release of information under section 237, release the information. They include:
consent (section 239), and “disclosure for the purpose of facilitating the exercise by
the authority of any [statutory] function” (section 241). Where a public authority
wishes to release information through one of these gateways, it must apply section
244, which requires it to consider various matters including the public interest.

9. The Commissioner issued his Decision Notice on 25 July 2006. He decided that the
absolute prohibition in section 44 applied to the information sought and therefore
upheld the OFT’s refusal to provide the information sought. Since section 44 was an
absolute exemption, he did not consider the qualified exemption under section 43; nor
whether the public interest was in favour of maintaining that exemption or outweighed
it.

10. Mr Dey appealed to the Tribunal against the Decision Notice. Many of the arguments
he sets out, both in the appeal notice and his submission to us, address the
exemption under section 43 and the public interest test which applies to that section.
They are substantial and forceful arguments. So are the arguments made in
response by the OFT. We propose to say nothing more about them because the first
point for us to decide is whether the Decision Notice is correct that the information
requested falls within the absolute exemption from disclosure in section 44. If it does,
the question of section 43 and the balance of public interest are academic: even if we
were minded to order disclosure under section 43, we could not do so if section 44
applies.

Does section 237 Enterprise Act prohibit disclosure ?

11. The information requested is clearly “specified information” within the definition of
specified information in section 238: the information came to the public authority (the
DTI/OFT) in connection with the performance of at least some of its functions under
Part 1 and Part 8 of the Act. Part 1, for example, includes section 5, the function of
obtaining information, and section 8, the function of promoting good consumer
practice; Part 8 deals with “The enforcement of certain consumer legislation”.

Appeal Number: EA/2007/0057

12. The restriction on disclosure in section 237 therefore applies “unless the disclosure is
permitted under this Part.” That prohibition on disclosure is reinforced by section 245
of the Act which makes it a criminal offence to disclose information to which section
237 applies, save in the permitted circumstances. Mr Dey argues that disclosure is
permitted in two ways.

13. Firstly, he says 237(3) permits disclosure because the information has on an earlier
occasion been disclosed to the public”, when Hammersmith and Fulham Trading
Standards department disclosed the number of complaints made against the
company to them. However, the information held and disclosed by Hammersmith
and Fulham is not the same information (though it may be similar and may overlap)
as the information held by the OFT: they hold information nationally, from other
Trading Standards departments and other sources, and information about complaints
against the company made to them directly. Section 237(3) does not therefore permit
the disclosure.

14. Secondly, he argues that disclosure is permitted under 237(6), since “This Part [which
includes section 237] does not affect any power or duty to disclose information which
exists apart from this Part.” The Freedom of Information Act imposes a duty to
disclose information independently of (“apart from”) the Enterprise Act, and therefore
the prohibition in section 237 does not apply.

15. To this, the Information Commissioner, and the OFT make two replies. Firstly, the
duty to disclose information in section 1(1)(b) of FOIA is expressly made subject to
the provisions of section 2, and section 2 provides:

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 any provision
conferring absolute exemption …

16. Therefore, they say, since section 44 is a provision in Part II which confers absolute
exemption, the duty in section 1(1)(b) of FOIA to disclose information does not apply.
Therefore there is no duty under the Freedom of Information Act to disclose
information which exists “apart from this Part” for the purposes of section 237(6) of
the Enterprise Act. We agree.

17. Secondly, they argue that section 44 of FOIA itself stipulates that information is
exempt from disclosure if its disclosure “(otherwise than under this Act) …” is
prohibited by or under any enactment. Disclosure, otherwise than under the Freedom

Appeal Number: EA/2007/0057

of Information Act, is prohibited under section 237 Enterprise Act. You cannot rely on
disclosure under the Freedom of Information Act to get round that prohibition.
Otherwise the argument would be circular: any prohibition on disclosure could be
circumvented by relying on the duty to disclose in section 1 of FOIA.

18. In considering this issue, we have considered the decision of the Scottish Information
Commissioner in Dr Donald Reid and Dumfries and Galloway Council, decision
210/2006. Mr Dey relies heavily on this: it is a decision on a similar point in his
favour; he invites us to follow it. The decision is not of course binding on us; and we
bear in mind that it is a Scottish decision taken under the provisions of the Freedom
of Information (Scotland) Act 2002 (FOI(S)A). The exemption in section 26(a) of
FOI(S)A is identical in its material terms to section 44 of FOIA. Dumfries and
Galloway Council relied on this exemption in refusing Dr Reid’s request for
information about requests to their Trading Standards department, because
disclosure of the information was prohibited by section 237 of the Enterprise Act
2002. The Scottish Information Commissioner concluded that section 237(6) did
allow disclosure of the information because the FOI(S)A provided a duty to disclose
the information “apart from” the Enterprise Act. However, in reaching that conclusion,
no account appears to be taken of the provisions of section 2 of FOI(S)A, which
makes the duty to disclose information in section 1 subject to those sections of
FOI(S)A containing exemptions; section 2 of FOI(S)A is similar in content and
structure to section 2 of FOIA. It is not for us to interpret or apply the Scottish
legislation but we are persuaded, on the legislation before us (FOIA), that the effect of
section 2 FOIA is that where an absolute exemption applies, then the duty to disclose
in section 1 does not apply. The exception in section 237(6) cannot therefore assist
Mr Dey.

19. Nor are we persuaded by the Scottish Information Commissioner’s argument, in
paragraphs 47to 49, that section 241(1) of the Enterprise Act also allows disclosure
under the freedom of information legislation. Section 241 is one of the gateways
under which a public authority may disclose information under the Enterprise Act for
the purpose of facilitating its functions. It gives the public authority a power to
disclose, not a duty. The exercise of that power is a matter for the public authority to
consider; it must first decide that it would facilitate the exercise of its functions to
disclose the information, and then it must apply the various tests set out in section
244. That process, with its own version of a public interest test, set out in an Act
passed two years after the Freedom of Information Act, cannot be short circuited by
invoking the Freedom of Information Act provisions.

20. A similar point arose for decision by a differently constituted Information Tribunal in
the case of Slann and the Information Commissioner and the Financial Services

Appeal Number: EA/2007/0057

Authority, EA/2005/0019. The Financial Services and Markets Act 2000 (FSMA)
contains restrictions on disclosure of information and also gateway provisions where
disclosure may be made, including one where disclosure will assist the authority in
discharging a” public function”. In paragraph 38 of their decision, the Information
Tribunal state :

The Tribunal respectfully agrees with FSA when it contends that section
349(5)(a) with its reference to public function is referring to and is directed to
functions and powers conferred on the FSA by statute or by statutory
instrument other than the FSMA and not legislation such as the 2000 Act
[FOIA] to which other persons including the FSA are or might be subject.
Even if that view were wrong, section 44 [FOIA] on its face makes it clear
beyond doubt that disclosure under the 2000 Act is to be ignored for this
purpose by virtue of the dispensing words” otherwise than under this Act”.

21. We take the same view. We are not persuaded by any of the reasoning in Reid, or by
Mr Dey’s other arguments, that section 44 does not apply to make the information
requested by Mr Dey exempt. Disclosure is prohibited under section 237 Enterprise
Act and therefore the information requested is exempt, under section 44 FOIA; and
therefore there is no obligation to disclose it under FOIA. The Decision Notice must
be upheld.

22. If we have a criticism of the Decision Notice, it is in the Commissioner’s Analysis, in
paragraph 5.4, that “much of the information falling within the complainant’s request is
subject to the statutory bar on disclosure at part 9 section 237 of the Enterprise Act”.
As Mr Dey put it, even if much of the information is exempt under section 44, the rest
of it should at least be disclosed. In our view, all the information requested is subject
to the statutory bar and therefore exempt under section 44.

Signed

Humphrey Forrest Dated 16 April 2007

Deputy Chairman

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You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Dey v Information Commissioner [2007] UKIT EA_2007_0057 (16 April 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2007_0057.html Cite as: [2007] UKIT EA_2007_57, [2007] UKIT EA_2007_0057



	Appeal Number: EA/2007/0057 Section 238: Information (1) Information is specified information if it comes to a public authority in connection with the exercise of any function it has under or by virtue of – (c) Part 1, 3, 4, 6, 7 or 8. 8. Sections 239 to 243 of the Enterprise Act set out various circumstances, or “gateways”, through which a public authority may, despite the general prohibition on the release of information under section 237, release the information. They include: consent (section 239), and “disclosure for the purpose of facilitating the exercise by the authority of any [statutory] function” (section 241). Where a public authority wishes to release information through one of these gateways, it must apply section 244, which requires it to consider various matters including the public interest. 9. The Commissioner issued his Decision Notice on 25 July 2006. He decided that the absolute prohibition in section 44 applied to the information sought and therefore upheld the OFT’s refusal to provide the information sought. Since section 44 was an absolute exemption, he did not consider the qualified exemption under section 43; nor whether the public interest was in favour of maintaining that exemption or outweighed it. 10. Mr Dey appealed to the Tribunal against the Decision Notice. Many of the arguments he sets out, both in the appeal notice and his submission to us, address the exemption under section 43 and the public interest test which applies to that section. They are substantial and forceful arguments. So are the arguments made in response by the OFT. We propose to say nothing more about them because the first point for us to decide is whether the Decision Notice is correct that the information requested falls within the absolute exemption from disclosure in section 44. If it does, the question of section 43 and the balance of public interest are academic: even if we were minded to order disclosure under section 43, we could not do so if section 44 applies. Does section 237 Enterprise Act prohibit disclosure ? 11. The information requested is clearly “specified information” within the definition of specified information in section 238: the information came to the public authority (the DTI/OFT) in connection with the performance of at least some of its functions under Part 1 and Part 8 of the Act. Part 1, for example, includes section 5, the function of obtaining information, and section 8, the function of promoting good consumer practice; Part 8 deals with “The enforcement of certain consumer legislation”.

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	Appeal Number: EA/2007/0057 Authority, EA/2005/0019. The Financial Services and Markets Act 2000 (FSMA) contains restrictions on disclosure of information and also gateway provisions where disclosure may be made, including one where disclosure will assist the authority in discharging a” public function”. In paragraph 38 of their decision, the Information Tribunal state : The Tribunal respectfully agrees with FSA when it contends that section 349(5)(a) with its reference to public function is referring to and is directed to functions and powers conferred on the FSA by statute or by statutory instrument other than the FSMA and not legislation such as the 2000 Act [FOIA] to which other persons including the FSA are or might be subject. Even if that view were wrong, section 44 [FOIA] on its face makes it clear beyond doubt that disclosure under the 2000 Act is to be ignored for this purpose by virtue of the dispensing words” otherwise than under this Act”. 21. We take the same view. We are not persuaded by any of the reasoning in Reid, or by Mr Dey’s other arguments, that section 44 does not apply to make the information requested by Mr Dey exempt. Disclosure is prohibited under section 237 Enterprise Act and therefore the information requested is exempt, under section 44 FOIA; and therefore there is no obligation to disclose it under FOIA. The Decision Notice must be upheld. 22. If we have a criticism of the Decision Notice, it is in the Commissioner’s Analysis, in paragraph 5.4, that “much of the information falling within the complainant’s request is subject to the statutory bar on disclosure at part 9 section 237 of the Enterprise Act”. As Mr Dey put it, even if much of the information is exempt under section 44, the rest of it should at least be disclosed. In our view, all the information requested is subject to the statutory bar and therefore exempt under section 44.

	Signed Humphrey Forrest Dated 16 April 2007 Deputy Chairman

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United Kingdom Information Tribunal including the National Security Appeals Panel