The Higher Education Funding Council for England v The Information Commissioner & Guardian News and Media Ltd

Reference: EA/2009/0036

Court: Information Tribunal

Judge: Ryan (Chairman), Jones and Shaw (lay members)

Date of judgment: 18 Jan 2010

Summary: Freedom of Information Act, s 41 - Exempt information - Confidential information - Information Tribunal - Appeal from decision of Information Commissioner

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The Higher Education Funding Council for England (‘the HEFCE’), a statutory corporation charged with the responsibility of administering public funds in relation to higher education, received a request for disclosure from a Guardian journalist. The request sought disclosure of, amongst other things, the state of repair (or disrepair) of various university buildings. The HEFCE refused to disclosure on the basis that most of the information sought had been received from third parties who had an expectation that it would be treated in confidence. Reliance was placed on s.41 of the Freedom of Information Act 2000 which provided an exemption from disclosure if such disclosure would constitute an “actionable” breach of confidence.


Whether s.41 was engaged so as to entitle the HEFCE to refuse disclosure.


(1) The term “actionable” in s 41 required the HEFCE to demonstrate that the claim would succeed on the balance of probabilities.

(2) Assessing the balance of probabilities included a consideration of common law public interest.

(3) The test for claims in confidence from Coco v Clark [1968] FSR 415 was applicable to s.41 and was satisfied: the information had the necessary quality of confidence, had been imparted in circumstances giving rise to an obligation of confidence, and detriment had been demonstrated.

(4) It was however in the public interest that confidence be breached; there was a public interest in having this type of information made public. Moreover, if the state of disrepair of university buildings was the result of inadequate public funding then there was legitimate scope for a properly informed public debate on the issue.


This judgment makes clear that public authorities can rely on s.41 FOIA but will only be able to do so where they can show that a breach of confidence claim against them would be likely to succeed.  That will not be the case where, as here, a public interest defence would be available.