Eric Doughty v Information Commissioner

Mode of hearing

1. The proceedings were held by video (CVP). The Appellant joined remotely, and the Information Commissioner did not attend. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. Background to Appeal

2. This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 16 October 2024 (IC-314817-C3H0, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about trading standards engagement with a particular kitchen provider that was requested from Nottinghamshire County Council (the “Council”).

3. On 24 March 2024, the Appellant wrote to the Council and requested a range of information relating to trading standards and Wren Kitchens (the “Request”). The Appellant’s letter related to a defective kitchen that had been provided by Wren Kitchens to a family member. The following parts of the Request are relevant to this appeal: “Have you issued, conducted or provided any: …. • Recommendations/changes to Wren Business Practices to improve the quality of its products and if provide a description or a copy …. • Tailored advice on complying with trading standards; what advice and why. …. • Quality control procedures any concerns. • Concern about the quality of finish, paintwork etc …. • Raised any concerns about breaches of the Consumer Rights Act 2015 and Sale of Goods Act”.

4. Nottinghamshire County Council Trading Standards acts as the “Primary Authority” for Wren Kitchens. This means that they are a single point of contact for the business on trading standards matters, providing support and advice on regulatory compliance. A Primary Authority trading standards officer is based full time at the headquarters of Wren Kitchens, and provides advice on specific customer complaints.

5. The Council responded on 18 April 2024 and answered all of the Appellant’s questions. In response to each of the above five questions, the Council said that an exemption had been applied. The exemption relied on was section 43(2) FOIA – prejudice to commercial interests. The exemption was applied on the basis that communications between the Council and Primary Authority businesses that they advise are commercially confidential. The Council maintained its position following an internal review.

6. The Appellant initially complained to the Commissioner on 29 May 2024. The Commissioner decided that the Council was entitled to withhold the information under the exemption for commercial interests. a. The exemption was engaged because disclosure could potentially prejudice the commercial interests of both Partner Authority businesses and the Council. This is because it would damage trust, reveal damaging information about weaknesses and scope for improvements, and damage the Council’s ability to obtain commercially sensitive information from businesses in order to provide advice. The likely prejudice could also be broadly interpreted as prejudicing the working relationship between trading standards and businesses involved in the Partner Authority scheme. b. The Appellant has personal interests in information relating to a grievance with Wren, he had raised issues about conflict of interest, and there is a general public interest in openness, transparency and scrutiny. However, FOIA relates to the broader public interest rather than the interest of individuals, and the Appellant has other remedies for redressing his concerns. c. These interests are outweighed by the damage to the commercial interests of both the businesses and the Council, and the risk of harm to the Partner Authority scheme which provides a mechanism for authorities and businesses to promote compliance with trading standards and to potentially avert the need for costly enforcement action. The terms and conditions of the Partner Authority scheme include an understanding that communications between the parties will be treated in confidence. The Appeal and Responses

7. The Appellant appealed on 5 November 2024. His grounds of appeal are: a. The Commissioner has not provided evidence to support his statements. b. Evidence provided by the Council in the original FOIA response conflicts with evidence provided to the Commissioner. c. A considerable number of complaints have been raised by consumers over the last 12 years, constituting public harm which is critical to the public interest test. d. He has followed due process to raise his concerns, and he questions how a citizen can meet the broader public interest if their motives for the public good are never explored.

8. The Commissioner’s response maintains that the Decision Notice was correct. a. The Commissioner considers it to be evident, given the nature of the relationship between the Council and Wren which requires the confidential sharing of Wren’s business information, that disclosure would be likely to cause such prejudices. b. In relation to the public interest, he accepts the general public interest in disclosure and notes the volume of complaints referred to by the Appellant. However, this is outweighed by the recognised need to protect commercially confidential information. I n order to encourage businesses to come forward, they need to have confidence that confidentiality will be maintained. P rimary authority businesses would be less willing to share information with partner authorities, and this would clearly be detrimental to the proper functioning of the advice system, and not in the overall public interest.

9. The Appellant submitted a detailed reply which addresses the points made by the Commissioner. We refer to the Appellant’s points where relevant in the discussion below. Applicable law

10. The relevant provisions of FOIA are as follows. 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. …… 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. …….. 43 Commercial interests ….. (2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). ……. 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.

11. Section 43 is a qualified exemption, meaning that the information should only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

12. The approach to be taken prejudice-based exemptions 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. Firstly the applicable interests within the relevant exemption must be identified. b. Secondly 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. Thirdly, the likelihood of occurrence of prejudice must be considered. Whether disclosure “would” cause prejudice is a question of whether this is more likely than not. To meet the lower threshold of “would be likely to” cause prejudice, the degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not. Issues and evidence

13. The issues are: a. Is the exemption under section 43(2) FOIA engaged? b. If so, in all the circumstances of the case, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information? We understand this to be the basis of the Appellant’s appeal.

14. By way of evidence and submissions we had the following, all of which we have taken into account in making our decision: a. An agreed bundle of open documents. b. A closed bundle of documents containing the withheld information. c. Oral submissions from the Appellant at the hearing. d. Answers to questions sent to the Council, and the Appellant’s representations about these answers.

15. The hearing took place on 25 June 2025. We decided that we required further information from the Council in order to make a fair decision. It has taken some time to finalise the decision because the Council provided some information on a closed basis which needed to be clarified, there were some administrative delays, and we then had to find a date when the panel could meet. We met to agree and finalise this decision on 5 December 2025.

16. The questions sent to the Council were as follows, with a summary of the Council’s answers: a. The Council provided the response “Yes, exemption applied (see below)” to the following two questions from the Appellant: • Recommendations/changes to Wren Business Practices to improve the quality of its products and if provide a description or copy. • Tailored advice on complying with trading standards; what advice and why. Was this information held by the Council? If so, was this withheld information provided to the Information Commissioner during his investigation? If not, why did the Council apply an exemption rather than confirming that the information was not held? Answer: The Council initially responded “yes” as they thought it included verbal recommendations and advice. There are three actual records that relate to the second point (tailored advice), which were supplied to the Commissioner and withheld under the claimed exemption. There were no records for the other four matters listed by the Appellant. b. The Council provided the response, “Exemption applied (see below)” to the following three questions from the Appellant: • Quality control procedures any concerns • Concern about the quality of finish, paintwork etc • Raised any concerns about breaches of the Consumer Rights Act 2015 and Sale of Goods Act Was this information held by the Council? If so, was this withheld information provided to the Information Commissioner during his investigation? If not, why did the Council apply an exemption rather than confirming that the information was not held? Answer: The same as for question (a). c. The Council provided the following response, “As a Primary Authority we regularly liaise and advise (exemption applied, see below) but we have not conducted any "advisory visits" (i.e. enforcement visits)” to the question from the Appellant, “Undertaken any advisory visits and if so, provide a copy”. Was any information that fell within this question held by the Council? If so, was this withheld information provided to the Information Commissioner during his investigation? If not, what information does the statement “exemption applied (see below)” refer to? Answer: No information was held by the Council that fell within this question. The wording “exemption applied” refers to advice that was provided verbally or recorded by Wren Kitchens on their own systems. d. The Council’s correspondence to the Information Commissioner dated 14 October 2024 refers to the “APP TS” database. Was this the only location searched for the requested information and, if so, why? Answer: Both emails and the Trading Standards Service’s database (Civica APP) where information would be held were searched for any relevant information. e. The Council’s correspondence to the Information Commissioner dated 14 October 2024 states that emails to Wren staff about specific customer complaints would not fall within the five matters requested by the Appellant. Why would these not fall within the scope of the Appellant’s request? Answer: The Council says, “ As the appellant was raising the questions under an FOI the council in its response interpreted the appellants request to relate to records of general advice on areas of TS legislation which may or may not stem from seeing trends in individual consumer complaints ”.

17. The open answers from the Council were provided to both the Appellant and the Commissioner. The Appellant provided a detailed response which we have considered and refer to in the discussion below. The Commissioner did not provide a response.

18. The Council applied for two paragraphs in their response to be held on a closed basis and this application was granted. These paragraphs provided some further information about the Council’s position which referred to the nature and content of the disputed information. Although we cannot provide more information to the Appellant about the content of these paragraphs, we can confirm that they have not had a material influence on our decision. Discussion and Conclusions

19. In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. The Tribunal’s jurisdiction is limited to issues that are actually dealt with in the Decision Notice. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision.

20. The first issue is clarification of what information was actually held by the Council . The original response said “yes, exemption applied” in relation to the first two items (recommendations/changes and tailored advice), and “exemption applied” in relation to the other three items. These answers gave the impression that information was held for all of these items but had been withheld under an exemption. The response also says “exemption applied” in response to a question about advisory visits. However, the Council’s response to the Commissioner during the investigation says that there are just three records which relate to the second item (tailored advice), and no records for the other four items.

21. The Appellant made the point at the hearing that the response “exemption applied” had been given in response to six questions, while the Council’s response to the Commissioner only referred to five questions. This is why the Tribunal sent the above questions to the Council before finalising its decision. Our findings on the information held by the Council are as follows: a. The closed bundle contains three chains of emails from different dates in 2019. These are the three items which fall into the category “ Tailored advice on complying with trading standards; what advice and why ”. The section 43(2) FOIA exemption has been used to withhold these three items. b. The Council says that it does not hold any information within the scope of the other four categories. The explanation for giving the answer “yes, exemption applied” for the item “ Recommendations/changes to Wren Business Practices to improve the quality of its products and if provide a description or copy”, is that this related to verbal recommendations and no written information is held. c. The Council says it does not hold any information in relation to advisory visits, and again says that the reference to “exemption applied” referred to advice that was provided verbally, or was held on Wren Kitchens’ systems (and so not held by the Council). d. Although the initial response to the Request was unclear, the Council has given consistent responses during the Commissioner’s investigation and in answer to the Tribunal’s questions. Their position is that only three items are held in relation to the category of tailored advice, and no information held for the other items. Their initial response was unclear because they had included verbal communications.

22. The Appellant makes the point that the Council appears to be trying to hide things by only providing verbal advice. The Tribunal finds it surprising that the trading standards relationship with Wren Kitchens operated in this way, and there are no more written communications held by the Council on any of these matters. However, having considered the searches described by the Council and their explanation of the position, we accept their version of events. The Appellant says this demonstrates a clear intent by the Council to avoid documenting its actions, to avoid the potential for its content to be released or scrutinised in the future. The Tribunal cannot order the Council to disclose information that it does not hold, or take any action in relation to information that the Appellant says it ought to hold but does not. This is, however, relevant to the public interest in disclosure of the withheld information (as discussed below).

23. The Council has failed to comply with section 1(1)(a) FOIA by not being clear in its original response to the Request whether information was held or not. They were not relying on section 43(3) to neither confirm nor deny whether information was held. The response gave the misleading impression that more recorded information was held. We accept that this was due to a misunderstanding that verbal information was also within scope.

24. Is the exemption under section 43(2) FOIA engaged? We find that it is engaged, and deal with this relatively briefly as it is not the basis of the appeal. a. What are the applicable interests within the exemption? Section 43(2) covers the commercial interests of any person, including the public authority. The applicable interests are primarily the commercial interests of businesses working with trading standards, in ensuring that damaging information about them is not released to the public. The Council also has interests in the reputation and effectiveness of its trading standards function, although this is not strictly a “commercial” interest in the sense of participating competitively in a commercial activity (see the Commissioner’s guidance on section 43(2)). b. Is there some causal relationship between the potential disclosure and the prejudice, and is that prejudice “real, actual or of substance”? We accept that disclosure of general advice provided by a trading standards officer to Wren Kitchens has a causal relationship with prejudice to their commercial interests, and that this is a real prejudice. Advice on matters such as compliance with trading standards would potentially be damaging to a business if it reveals issues with non-compliance. c. Would disclosure cause this prejudice or would it be likely to do so? We find that disclosure would be likely to cause this prejudice, meaning there is a real and significant risk (even if it falls short of a 50 per cent chance). The withheld information is tailored advice on compliance with trading standards. Disclosure would reveal where issues about non-compliance with these standards have been raised with the business, and this causes a real risk of damage to reputation and so the commercial interests of Wren Kitchens. Disclosure also risks damaging the trust of Wren Kitchens in the Primary Authority arrangements, which may cause them commercial damage if it means they are less frank in their dealings with the allocated officer and so do not get all the advice they require on compliance with trading standards. We note that the Council says that the Primary Authority agreement contains obligations of confidentiality, which indicates that keeping matters confidential will help to protect the business’s commercial interests. d. We have noted a point made by the Appellant at the hearing. He explained that Wren Kitchens had chosen to selectively pass on advice they had received from trading standards while dealing with his relative’s complaint about the defective kitchen - they had been told the trading standards officer had reviewed and approved the options offered for resolution of the complaint. The Appellant says that this undermines the argument that it is too damaging for Wren Kitchens to reveal any information about advice from trading standards. We take the Appellant’s point that this appears to be a selective release of information. However, this was a disclosure of advice that was relevant to an individual complaint, which is different from disclosure to the world at large under FOIA of more general advice on compliance with trading standards.

25. In all the circumstances of the case, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information? We have considered the public interests for and against disclosure.

26. Public interests in disclosure . There are various public interests in favour of disclosure. There is a general interest in openness and transparency in relation to how the Primary Authority arrangements work in practice. The Council invests time and money in supporting businesses with trading standards through this arrangement, and the public has an interest in understanding how this is done.

27. The Appellant’s public interest arguments are based on exposure of wrongdoing. He says that there have been some 19,000 complaints about Wren Kitchens that have been dealt with through Citizens Advice (see page C192 onwards in the bundle). The Council says that nearly all of the advice on the issues he asked about has been provided verbally rather than on paper, and the Appellant questions how lessons can be learned in these circumstances. He makes the point that the Primary Authority arrangement does not appear to have improved compliance with trading standards, based on the ongoing number of complaints. He says that it appears that the Council’s trading standards officer is working for Wren Kitchens rather than for the public, and so the public needs to understand exactly what that officer has been doing.

28. The Appellant has personally had a bad experience with Wren Kitchens, and he explained at the hearing that his relative only obtained a full refund for the defective kitchen after two years and having asked some 28 times. We accept, however, that his request for information is not purely motivated by personal interest. The Appellant’s reply and his final submissions make clear that he is seeking this information in the public interest of holding the Council to account, and that there is a suspicion of wrongdoing by not recording information deliberately to avoid scrutiny by the public.

29. Public interests against disclosure . We accept the Commissioner’s position that it is not in the public interest for the working relationship between trading standards and businesses involved in the Partner Authority scheme to be undermined. If businesses participating in the scheme risk having their commercial interests damaged by disclosure of trading standards advice under FOIA, they are less likely to provide full and frank information to trading standards officers. They are also unlikely to provide any commercially sensitive information. This would hamper the work of the trading standards officers, undermine the scheme and prevent the Council from promoting compliance with trading standards in the most effective way. There is a clear public interest in trading standards officers getting maximum cooperation from the businesses that they work with.

30. Conclusions on the public interest balance . Having considered the specific circumstances and the content of the withheld information, we find that the public interest in maintaining the exemption does not outweigh the public interest in disclosing the information in this particular case.

31. We accept that there are some strong general public interest arguments in favour of upholding the exemption. However, the circumstances here are quite unusual. The Council has confirmed that verbal exchanges have taken place on a number of the topics that the Appellant asked about, but they have no written record of this. Only three chains of emails have been identified as held. This is despite the fact that the Primary Authority arrangement between the Council and Wren Kitchens has been in place for a number of years, and a Council employee works from the head office of Wren Kitchens. There may be written records of other matters that do not fall within the scope of the Request (such as advice on specific individual complaints). Nevertheless, the lack of written records is striking. This does not necessarily mean there has been any wrongdoing, or a deliberate attempt to avoid public scrutiny. However, these unusual circumstances enhance the public interest in full transparency about how the relationship operates in practice, including disclosure of the few documents that do exist.

32. We have also taken into account the content of the withheld information. We do not consider that it is likely to cause substantial damage to the commercial interests of Wren Kitchens. This means it is not likely that the relationship with the Council’s trading standards officer would be seriously damaged by disclosure under FOIA. The information is not current as it is from 2019. It is only a small amount of information. It also appears that information about complaints and concerns relating to Wren Kitchens is already in the public domain, in particular the information from Citizen’s Advice. Looking at the extent and nature of the recorded complaints, any extra prejudice from disclosure of the withheld information is limited.

33. We emphasise that this decision is based on the particular facts of this case. We are not suggesting that other trading standards records held by the Council about Wren Kitchens should necessarily be disclosed, or that records relating to Primary Authority arrangements are generally disclosable under FOIA.

34. We therefore find that the Council was not entitled to rely on section 43(2) FOIA to withhold the requested information. The Council is to disclose the withheld information in accordance with the Substituted Decision Notice set out above.

35. The Appellant included a variety of other requested outcomes in Box 8 of his appeal form. These are not things that the Tribunal is able to order. We can only decide whether the Council was entitled to withhold information under section 43(2) FOIA.

36. At the hearing, the Appellant also asked us to consider whether the Council has acted in contempt of court. A previous application for certification of an offence to the Upper Tribunal was refused by Judge Buckley on 13 March 2025. The Appellant suggests that the Council has misled the Tribunal by initially saying that it held information in relation to two parts of the Request, but then advised the Commissioner that only three records existed in relation to one part of the Request. We have discussed this issue in paragraph 21 above. We agree with Judge Buckley that these facts do not constitute any conduct that would amount to contempt of court. Firstly, we have accepted the Council’s explanations for the different responses, and do not find there was a deliberate intention to be misleading. Secondly, there were no Tribunal proceedings at the time when the Council gave contradictory answers about what information was held, so it cannot have misled the Tribunal through these answers.

37. We uphold the appeal and issue the Substituted Decision Notice set out at the start of this decision. Signed: Judge Hazel Oliver Date: 15 December 2025