Home > Cases > Department for Business Innovation and Skills v Information Commissioner and Browning

On 9 September 2009 and pursuant to the Freedom of Information Act 2000 (“FOIA”),Mr Browning made a request for information to DBIS. Mr Browning subsequently narrowed the scope of his request. As so narrowed, Mr Browning sought “Which companies applied to the Export Control Organisation for export licences to Iran in the first and second quarters of this year [2009].” (“the Request”). DBIS refused under s 41 and s 40. The Information Commissioner allowed Browning’s appeal. DBIS appealed to the Tribunal. The Information Commissioner recanted, joining DBIS in rejecting the request for information. Mr Browning took over the appeal.

Mr Browning argued that s 41(1) was inapplicable since:
(a) The information sought through the Request (namely, the names of the companies that applied to the Export Control Organisation (“ECO”) for export licences to Iran in the first 6 months of 2009) was not “obtained by” DBIS from another person. The information is the collection of facts which DBIS has recorded, i.e. the fact of the identity of each company that made an application to the ECO for particular sorts of export licence. If public authority X records that it has received an application form from A, B and C, that record (as opposed to the application forms) is not information obtained from A, B or C.
(b) Even if the information sought through the Request could be characterised as having been “obtained by” DBIS from another person, the disclosure of the names of the companies that applied to the ECO for export licences (regardless of the country and regardless of the period) would not constitute a breach of confidence actionable by anyone, since:
(i) the name of a company that made an application to the ECO for an export licence does not have the necessary quality of confidence about it such that equity would intervene to protect it;
(ii) in any event, in making an application to a public authority for a benefit administered in the public interest (i.e. a licence to do something otherwise proscribed) where statute has not given any protection from disclosure, a company is not imparting the mere fact of its having made an application in circumstances that import an obligation of confidence; and
(iii) moreover, DBIS’s disclosure of the name of a company that had made an application (without more) would neither constitute an unauthorised use of that particular information nor would it result in any material detriment to that company.
(c) In any event, there is a public interest in the disclosure of the information (especially to a responsible journalist who has no other means of carrying out responsible journalism on a topic of legitimate public interest) such that equity would not protect any confidentiality that might exist in the information.

Held: The Tribunal refused the request for information.

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