{"check":null,"uid":"279ae7e401f7fe0c","title":"The Secretary of State for Defence v The Information Commissioner","title_generated":false,"country":"Великобритания","organ":"Суды Англии и Уэльса","kind":"case","kind_name":"Судебная практика","lang":"en","date":"2026-08-19","summary":"Военное ведомство оспаривало предписание комиссара раскрыть по запросу гражданина армейские руководства по обслуживанию и ремонту грузовиков Bedford и навесных снегоочистителей. Трибунал в жалобе отказал: исключение по section 41(1) FOIA не работает, поскольку ведомство не показало ущерба для передавшего сведения лица и, значит, реальной перспективы иска о нарушении конфиденциальности; исключение по section 43(2) тоже не задействовано — вред коммерческим интересам заявлен умозрительно. Руководствам не меньше 35 лет, технику ведомство не использует, правообладателей найти не удалось, а сходные документы раскрыли в 2021 году без последствий. Предписание признано соответствующим закону.","snippet":"","topics":["Интеллектуальная собственность в цифровой среде","Персональные данные"],"status":"ok","error":"","text_len":41347,"versions":1,"url":"https://caselaw.nationalarchives.gov.uk/ukftt/grc/2026/1169","first_seen":"2026-08-19","last_checked":"2026-09-17 01:38","relevance":"hit","score":18,"query":"personal data","source_key":"caselaw_uk","verdict":{"relevance":"hit","score":18,"topics":["Авторское право и цифровой контент","Персональные данные"],"need_body":3,"authorities":[{"kind":"орган","name":"Information Commissioner","topic":"Персональные данные"}],"evidence":[{"topic":"Авторское право и цифровой контент","term":"intellectual property","weak":true,"pos":1608,"ctx":"e basis that processing it would be burdensome. it also indicated that issues relating to intellectual property rights (“ip rights”) and third party consultation prevented it from proposing a meaningfu","zone":"текст","weight":0},{"topic":"Авторское право и цифровой контент","term":"intellectual property","weak":true,"pos":9382,"ctx":"not disclosed.  35.  the tribunal heard oral evidence from emma gardner, head of defence intellectual property rights, a role she has occupied since 6 october 2023.  36.  the tribunal was provided wit","zone":"текст","weight":0},{"topic":"Авторское право и цифровой контент","term":"intellectual property","weak":true,"pos":11676,"ctx":"same information and were disclosed in error without consideration of confidentiality and intellectual property issues.  (b)  while section 41(1) is an absolute exemption, there is a public interest de","zone":"текст","weight":0},{"topic":"Авторское право и цифровой контент","term":"intellectual property","weak":true,"pos":13274,"ctx":"i)  disclosure would risk real prejudice to future procurement as the evidence shows that intellectual property issues are central to defence procurement (the mod places over 2,000 contracts annually)","zone":"текст","weight":0},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":22392,"ctx":")  the manuals in the closed bundle are marked with \"conditions of release\" and/or \"crown copyright\" - but by the mod as the recipient of the information, not by the suppliers of it.  (h)","zone":"текст","weight":1},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":23595,"ctx":"o remove personal data under section 40 but the front sheets were retained stating \"crown copyright reserved\" and/or \"\"this information may be subject to privately owned rights\": references","zone":"текст","weight":1},{"topic":"Персональные данные","term":"Information Commissioner","weak":false,"pos":41,"ctx":"The Secretary of State for Defence v The Information Commissioner Военное ведомство оспаривало предписание комиссара раскрыть по запросу гражданина армейск","zone":"орган","weight":3}],"dropped":[{"topic":"Персональные данные","term":"personal data","weak":false,"pos":23514,"ctx":"e mod now states - by mistake.  (m)  manuals previously disclosed were redacted to remove personal data under section 40 but the front sheets were retained stating \"crown copyright reserved\" an","why":"одиночное упоминание (нужно 3)"},{"topic":"Персональные данные","term":"privacy","weak":true,"pos":30196,"ctx":"ercial confidences. contrary to the mod's submission, the tribunal considers individuals' privacy rights differ from commercial confidentiality because the nature of loss of private perso","why":"одиночное упоминание (нужно 3)"}]},"last_changed":"2026-08-19","meta":{"neutralCitation":"[2026] UKFTT 01169 (GRC)","court":"United Kingdom First-tier Tribunal (General Regulatory Chamber)"},"source_url":"https://caselaw.nationalarchives.gov.uk/ukftt/grc/2026/1169","text":"Introduction\n\n1.\n\nThis is an appeal by the Ministry of Defence (“the MOD”) against the Information Commissioner’s decision notice IC\n‑\n353552\n‑\nM1L8 and IC\n‑\n358729\n‑\nN5Y3 dated 29 July 2025 (“the DN”). The DN concerned two FOIA requests made by Mr Mark Ellis to the MOD for Army Equipment Support Publications (“AESPs” or \"manuals\") i.e. maintenance and repair manuals for Bedford trucks and mounted snowploughs.\n\n2.\n\nIn the DN, the Information Commissioner (\"the Commissioner\") concluded that, on the balance of probabilities, the MOD did not hold one of the requested manuals. However, all the others were held and not exempt from disclosure under either section 41(1) (information provided in confidence) or section 43(2) (commercial interests) as claimed by the MOD. The Commissioner therefore ordered their disclosure.\n\n3.\n\nIn this decision, references to FOIA are to the\nFreedom of Information Act 2000\nand references to sections are to sections of\nthat Act\nunless otherwise stated.\n\nThe requests for information, internal review and responses\n\n4.\n\nMr Ellis's first request (\"Request 1\") on 28 October 2023 was as follows:\n\n“PDF copies of the AESP manuals for 3830 K 100 Snow plough truck mounting (Bunce) and 3830 K 102 Snow plough truck mounted type (Eagle), especially the sections for mounting them on trucks.”\n\n5.\n\nOn 23 November 2023 the MOD responded that it did not hold AESP 3830\n‑\nK\n‑\n100 (Bunce). It confirmed that it held AESP 3830\n‑\nK\n‑\n102 (Eagle) but refused the request under section 14(1) on the basis that processing it would be burdensome. It also indicated that issues relating to intellectual property rights (“IP rights”) and third\nparty consultation prevented it from proposing a meaningful refinement of the request.\n\n6.\n\nMr Ellis's second request (\"Request 2\") on 9 April 2024 asked for a page count of all the Bedford TL manuals and copies of the following AESPs:\n\n(a)\n\n2320-R-200-201 Operating Information;\n\n(b)\n\n2320-R-200-522 Repair Instructions;\n\n(c)\n\n2320-R-200-532 Inspection Standards; and\n\n(d)\n\n2320-R-200-533 Inspection Standards.\n\n7.\n\nBy letter dated 3 June 2024 the MOD refused the request under section 14(1), again relying principally on the burden associated with identifying and consulting potentially affected third parties concerning IP rights.\n\n8.\n\nOn the same day (3 June 2024), Mr Ellis sought an internal review of both requests. The MOD responded on 6 December 2024 maintaining its position in respect of Request 1 that AESP 3830-K-100 was not held and that section 14(1) justified refusal of disclosure of all the other AESPs requested. However, the MOD subsequently provided the page count information sought by Request 2.\n\nThe Commissioner’s investigation and Decision Notice\n\n9.\n\nMr Ellis complained to the Commissioner about the MOD's handling of both requests. In relation to Request 1, he disputed the MOD’s position that AESP 3830\n‑\nK\n‑\n100 was not held. He also challenged reliance on section 14(1) in relation to both requests.\n\n10.\n\nDuring the Commissioner's investigation, the MOD reconsidered its position.\n\n11.\n\nOn 27 June 2025 the MOD informed Mr Ellis that it was no longer relying on section 14(1) but instead that all the held AESPs were exempt under sections 41(1) and 43(2).\n\n12.\n\nThe Commissioner therefore investigated:\n\n(a)\n\nwhether the MOD held AESP 3830\n‑\nK\n‑\n100; and\n\n(b)\n\nwhether the remaining requested manuals were exempt under sections 41(1) and/or 43(2).\n\n13.\n\nIn relation to information held, the Commissioner accepted that the MOD had undertaken extensive searches, including searches of the MOD's Technical Documentation Online (TDOL) tool, archival systems, wider departmental repositories and the hard-copy archive, and concluded on the balance of probabilities that AESP 3830-K-100 was not held.\n\n14.\n\nIn relation to section 43(2), the Commissioner accepted that there was, in principle, a conceivable relationship between disclosure and potential prejudice to commercial interests. However, he concluded that the MOD had failed to demonstrate a real and significant risk of prejudice. The asserted harms were regarded as speculative and unsupported by evidence. Weight was placed on the manuals' age and evidence that similar Bedford manuals had previously been released without adverse consequences.\n\n15.\n\nIn relation to section 41(1), the Commissioner accepted that the information originated from third parties and had the necessary quality of confidence. However, he concluded that the MOD had failed to demonstrate that disclosure would result in detriment to any confider. Accordingly, disclosure would not amount to an actionable breach of confidence.\n\n16.\n\nThe DN accordingly required the MOD to disclose AESP 3830\n‑\nK\n‑\n102 together with the four Bedford manuals requested.\n\nAppeal to the Tribunal\n\n17.\n\nOn 5 September 2025, the MOD's representative sent a Notice of Appeal to the Tribunal challenging the DN\n.\n\n18.\n\nThe appeal was submitted 10 days late for reasons set out in the Appeal Notice, and the Grounds of Appeal followed a further four days later. The Commissioner has raised no objection to these delays. The Tribunal accepts there is little or no prejudice to the Commissioner or the Tribunal caused by the short delays and grants an extension of time accordingly.\n\n19.\n\nThe MOD's grounds of appeal are that the Commissioner erred in law in concluding that sections 41(1) and 43(2) were not engaged and/or that he ought to have exercised his discretion differently in weighing the respective public interest factors.\n\nCommissioner's Response to the Appeal\n\n20.\n\nThe Commissioner responded that the appeal should be dismissed because the DN correctly concluded that sections 41(1) and 43(2) were not engaged.\n\n21.\n\nThe Commissioner contended that the MOD's arguments either misstate the law or amount to disagreement with the Commissioner's evaluative assessment of the evidence.\n\nThe Law\n\n22.\n\nThe relevant statutory provisions are set out below.\n\nSection 41(1) - information provided in confidence\n\n23.\n\nSection 41(1) provides:\n\n“Information is exempt information if—\n\n(a)\n\nit was obtained by the public authority from any other person; and\n\n(b)\n\nthe disclosure of the information to the public (otherwise than under\nthis Act\n) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.\n\n24.\n\nThe Commissioner considered the principles identified in\nCoco v A.N. Clark (Engineers) Ltd\n[1968] FSR 415\nthat (1) the information must have the necessary quality of confidence; (2) it must have been imparted in circumstances importing an obligation of confidence; and (3) disclosure must be an unauthorised use of the information to the detriment of the confider i.e. an \"actionable\" breach of confidence.\n\n25.\n\n\"The necessary quality of confidence\" means the information must (1) not be generally accessible (2) not be public knowledge and (3) possess sufficient value or significance to warrant protection.\n\n26.\n\n\"Circumstances importing confidence\" may be express or implied but even if information is expressly marked \"confidential\", this is not determinative: the surrounding circumstances must support an expectation of confidentiality.\n\n27.\n\n\"Actionable\" means likely to succeed, which is more than merely plausible or arguable: the authority must show that a breach of confidence action would\nlikely\nsucceed on the balance of probabilities.\n\nSection 43(2) - commercial interests\n\n28.\n\nSection 43(2) states:\n\n“Information is exempt information if its disclosure under\nthis Act\nwould, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).”\n\n29.\n\nThe Commissioner applied the well\n‑\nestablished three\n‑\nstage prejudice analysis: (1) identifying the actual commercial interests being protected; (2) establishing a causal connection between disclosure and the anticipated commercial harm; and (3) evaluating whether such harm \"would\" (more likely than not) or \"would be likely to\" (real and significant risk) occur.\n\nSections 57 and 58: the role of the Tribunal\n\n30.\n\nSection 57 entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.\n\n31.\n\nUnder section 58, if the Tribunal considers that the decision notice was either wrong in law or, to the extent that the notice involved an exercise of discretion by the Commissioner he ought to have exercised it differently, the Tribunal shall either allow the appeal (or substitute the decision notice) or dismiss the appeal.\n\n32.\n\nThe Tribunal can also review any finding of fact on which the decision notice was based.\n\nEvidence\n\n33.\n\nThe Tribunal was provided with (1) a Final Open Bundle of 135 pages (including indexes) comprising the pleadings, the decision notice, the requests and responses, internal review correspondence, investigation correspondence, case management directions, witness evidence and other supporting material and (2) a Supplementary Hearing Bundle of 910 pages comprising three AESPs (dating from 1985-1997) disclosed by the MOD in January 2021 in response to a previous FOIA request.\n\n34.\n\nThe Tribunal was also provided with an Authorities Bundle and a Closed Bundle containing the manuals held by the MOD but not disclosed.\n\n35.\n\nThe Tribunal heard oral evidence from Emma Gardner, Head of Defence Intellectual Property Rights, a role she has occupied since 6 October 2023.\n\n36.\n\nThe Tribunal was provided with a letter from the requester dated 28 April 2026 explaining the background to the request. It became apparent only at the hearing that the parties had not seen the letter and had no opportunity to comment on it until after the hearing. The Tribunal therefore granted the parties time after the hearing to make representations. The MOD objected to the Tribunal relying on the letter because the requester is not a party to the proceedings nor was he available at the hearing for cross-examination on matters he raised in it. The Tribunal therefore placed no reliance on the letter.\n\nSubmissions\n\nSummary of submissions on behalf of the Appellant (the MOD)\n\n37.\n\nThe MOD submits that as the appeal is a full merits review, the Tribunal is not bound by the Commissioner's factual or evaluative findings and can determine the issues afresh based on witness evidence now before it. In summary:\n\nGround 1\n\n(a)\n\nIn relation to section 41(1), the MOD submits:\n\nA.\n\nBurden of proof\n- The Commissioner wrongly placed the burden of proving detriment on the MOD, whereas the burden lay on the party seeking disclosure to justify interference with confidentiality.\n\nB.\n\nNature of detriment\n- The Commissioner erred in treating detriment, and in particular commercial prejudice, as a legal prerequisite for an actionable breach of confidence. Confidentiality has inherent value such that loss of control over confidential information may itself be sufficient to found a claim.\n\nC.\n\nEvidence of detriment\n- In any event, the Commissioner failed properly to assess the evidence: the information had been supplied to the MOD under obligations of confidence, there is no evidence that those obligations have been waived or released, and disclosure would therefore constitute an actionable breach of confidence. Witness evidence was that AESPs comprise proprietary information licensed to the MOD for limited use, access to which is tightly controlled, and that the information retains commercial value. Further, the Commissioner wrongly relied upon the previous disclosure of similar AESPs, which were not the same information and were disclosed in error without consideration of confidentiality and intellectual property issues.\n\n(b)\n\nWhile section 41(1) is an absolute exemption, there is a public interest defence to a breach of confidence claim which is inapplicable in this case: only an exceptional public interest could defeat the breach of confidence, and the burden of establishing such a defence rests on the party seeking disclosure. In this case, no public interest in disclosure beyond the private convenience of persons wishing to restore old examples of the equipment has been identified.\n\nGround 2\n\n(c)\n\nIn relation to section 43(2) the MOD submits:\n\nA.\n\nCommercial interests of others\n\n(i)\n\nThe Commissioner was wrong to conclude that any prejudice to commercial interests was merely hypothetical, not a \"real and significant risk\". The evidence shows a commercial market for such maintenance information which is routinely monetised by rights-holders.\n\n(ii)\n\nThe Commissioner wrongly treated the absence of evidence of current prejudice as evidence that no commercial interests are affected and speculated that the age of the information had diminished its value despite there being no evidence of waiver of confidentiality or IP rights. The Commissioner therefore treated absence of evidence as evidence of absence.\n\nB.\n\nCommercial interests of the MOD\n\n(i)\n\nThe Commissioner failed properly to consider the impact on contractors' confidence of the MOD's inability to protect confidential IP rights, particularly as contractors would still be expected to respect the MOD's confidences.\n\n(ii)\n\nDisclosure would risk real prejudice to future procurement as the evidence shows that intellectual property issues are central to defence procurement (the MOD places over 2,000 contracts annually) and diminished confidence in the MOD's ability to protect proprietary information could lead to reduced information sharing, increased negotiation costs, create greater dependence on sole-source servicing arrangements, and increase reluctance by suppliers to contract with the MOD. These concerns are corroborated by industry evidence from the Association of Defence Suppliers (\"ADS\").\n\n(iii)\n\nThe Commissioner conflated the protection afforded by section 43(2) with the narrower protection for trade secrets under section 43(1).\n\nC.\n\nPrejudice to commercial interests\n\n(i)\n\nRelease of the requested information is incompatible with the commercial interests of those who hold IP rights in the requested information who may sell the manuals or otherwise provide services based on their content.\n\n(ii)\n\nThe MOD's commercial interests would also suffer as release would undermine the ability of the MOD to observe contractual obligations by which it seeks to protect the IP rights of its suppliers.\n\n(iii)\n\nThe continued subsistence of IP rights after disclosure does not eliminate the claimed prejudice, because the commercial value of the information lies in its confidentiality and any rights may be costly and difficult to enforce once disclosure has occurred.\n\n(d)\n\nWhen considering the public interest balance for section 43(2), against the limited private interest in obtaining decades-old maintenance manuals, the MOD relies on the public interest in preserving contractual confidences, protecting the commercial interests of contractors and the MOD itself, and supporting efficient and economical defence procurement.\n\n38.\n\nThe MOD seeks substitution of the DN as the entirety of the withheld information is exempt under section 41(1) and/or section 43(2).\n\nSummary of submissions on behalf of the Commissioner\n\n39.\n\nThe Commissioner challenges the MOD's arguments and invites the Tribunal to dismiss the appeal.\n\nGround 1\n\n(a)\n\nSection 41(1) is\nnot\nengaged because:\n\nA.\n\nBurden of proof\n\n(i)\n\nThe burden relied upon by the MOD in\nPage v IC and School of Sexuality Education [2023] UKFTT 00476 (GRC) (\nupheld by the Upper Tribunal\nPage v IC\n[2025] UKUT 308 (AAC)\n) concerns the public interest defence and only arises once the\nCoco\ntest is satisfied.\n\n(ii)\n\nThe Commissioner's finding was directed to the third limb of the\nCoco\ntest (detriment), in respect of which the MOD, as the party relying on the exemption, bore the burden of proof.\n\n(iii)\n\nThe Commissioner relies on\nHigher Education Funding Council for England v IC & Guardian News and Media Ltd\n[EA/2009/0057}\nas authority that, in cases involving commercial confidences, detriment must be proved by the authority seeking to rely on section.\n\n(iv)\n\nThere is no principled basis for departing from the general FOIA principle that the public authority bears the burden of establishing that an exemption is engaged.\n\nB.\n\nNature of detriment\n\n(i)\n\nThe Commissioner rejects the contention that detriment is unnecessary in cases involving commercial confidences.\n\n(ii)\n\nThe authorities relied on by the MOD either do not determine the issue, concern personal rather than commercial confidences, or are not authorities binding this jurisdiction.\n\n(iii)\n\nThe Commissioner's reliance on the same considerations underpinning his section 43 analysis did not amount to an unlawful conflation of the two exemptions.\n\n(iv)\n\nThe MOD has identified no non-commercial interests or other material factors that the Commissioner failed to consider when assessing detriment.\n\n(v)\n\nDevelopments in the law concerning personal and private information do not remove the requirement to establish detriment in cases concerning commercial confidences.\n\n(vi)\n\nThe MOD is effectively inviting the Tribunal to depart from the existing case law on section 41 without justification.\n\nC.\n\nEvidence of detriment\n\n(i)\n\nThe MOD has failed to produce evidence that disclosure would cause detriment to any confider: reliance on the existence of historic contractual obligations and confidentiality provisions is insufficient.\n\n(ii)\n\nAssertions that there is no evidence of confidentiality being waived or the information being published does not establish detriment.\n\n(iii)\n\nThe MOD has not explained why similar AESP material has previously been disclosed nor has it positively established that confidentiality obligations continue to subsist.\n\n(iv)\n\nOn the MOD's reasoning, all information supplied under contract could become permanently exempt without proof of detriment, which is inconsistent with section 41 FOIA.\n\n(v)\n\nThe MOD accepts that it cannot reliably identify the current IP rights- holders and is therefore unable to identify any continuing confidence or specific detriment.\n\n(vi)\n\nThe inability to identify rights-holders, coupled with the age of the material and disclosure of similar AESPs, reinforces the speculative nature of the claimed detriment.\n\n(b)\n\nThe public interest defence only arises if the\nCoco\nrequirements are first satisfied. As detriment has not been established, the question of whether any public interest defence would defeat an actionable breach does not arise.\n\nGround 2\n\n(c)\n\nAs a preliminary point on section 43(2), IP rights do not themselves prevent disclosure under FOIA and continue to subsist after disclosure. Information does not become exempt merely because IP rights attach to it. Further, disclosure of commercial information is not automatically commercially prejudicial for the purposes of section 43(2). Responding to the MOD's submissions:\n\nA.\n\nCommercial interests of others\n\n(i)\n\nThe MOD wrongly conflates confidentiality under section 41 with prejudice to commercial interests under section 43(2). The latter requires proof of a real and significant risk of commercial prejudice.\n\n(ii)\n\nThe Commissioner was entitled to take account of the age and niche nature of the information when assessing whether any present-day commercial prejudice was likely.\n\n(iii)\n\nThe previous disclosure of similar AESPs is a relevant indication that any claimed prejudice was speculative, particularly as no evidence has been produced that those disclosures caused harm.\n\n(iv)\n\nThe MOD has produced no positive evidence of prejudice to any identified third party and has not distinguished the withheld AESPs from those previously disclosed.\n\n(v)\n\nThe MOD has failed to identify either the third parties affected or the specific commercial interests that would allegedly be prejudiced.\n\n(vi)\n\nSection 43(2) requires prejudice to be grounded in actual knowledge of third party concerns and not on assumptions made in the absence of evidence.\n\n(vii)\n\nThe MOD improperly seeks to reverse the burden of proof by suggesting prejudice should be presumed because there is no evidence of waiver or publication.\n\nB.\n\nCommercial interests of the MOD\n\n(i)\n\nThe claimed impact on future procurement and contractor confidence is hypothetical and insufficient to satisfy the requirement that prejudice be real, actual or of substance.\n\n(ii)\n\nProspective contractors can distinguish between disclosure of decades-old manuals and disclosure of commercially significant contemporary information.\n\n(iii)\n\nIP rights do not prevent disclosure under FOIA and continue to subsist after disclosure.\n\n(iv)\n\nThe MOD has not shown any causal connection between disclosure of the specific information requested and the prejudice alleged, nor identified any adverse effects flowing from previous disclosure of similar AESPs.\n\n(v)\n\nAssertions that disclosure creates an imbalance of confidence obligations and may affect future procurement are said to amount to a \"realistic possibility\" which falls well below the required threshold of a very significant and weighty likelihood of prejudice\n.\n\nC.\n\nPrejudice to commercial interests\n\nThis ground does not identify any separate error of law and merely repackages the MOD's disagreement with the Commissioner's evaluative conclusions.\n\nDiscussion and decision\n\nThe facts\n\n40.\n\nThe Tribunal first considered the relevant facts of this case. Based on the open evidence the Tribunal has seen and heard, it makes the following findings of fact based on \"the balance of probabilities\" (that is, what is more likely than not):\n\n(a)\n\nAESP manual 3830 K 100 Snow plough truck mounting (Bunce) is not held.\n\n(b)\n\nThe remaining requested manuals are held and are dated between July 1985 and May 1990.\n\n(c)\n\nThe vehicles to which the manuals relate are no longer used by MOD and are no longer manufactured.\n\n(d)\n\nThe manuals are for maintenance and repair of the vehicles/equipment and do not contain pricing or other commercial information.\n\n(e)\n\nExamples revealed by the MOD's internet searches of equipment still used by others apparently involve either overseas users or trucks which have been modified as horseboxes, campervans etc.\n\n(f)\n\nIf such users have used the requested manuals, no payment for such use has been established.\n\n(g)\n\nThe manuals in the Closed Bundle are marked with \"Conditions of Release\" and/or \"Crown Copyright\" - but by the MOD as the recipient of the information, not by the suppliers of it.\n\n(h)\n\nNo contracts between the MOD and the suppliers can be found, nor were any similar contracts from the same era (perhaps from other providers of equipment during that period) produced to the Tribunal.\n\n(i)\n\nNo\ncontractual\nobligations of confidence for the protection of any IP rights in the requested manuals - whether of the suppliers or their successors nor whether express or implied - have been established by the evidence.\n\n(j)\n\nSurrounding circumstances - as regards confidentiality or otherwise - existing at the time the suppliers provided the manuals (e.g. framework agreements; correspondence; policy documents etc.) have not been brought to the Tribunal.\n\n(k)\n\nDespite detailed investigations by the MOD, the current owners of any proprietary rights in the manuals have not been identified.\n\n(l)\n\nSimilar manuals to those requested in this case were disclosed by the MOD in 2021 in response to a FOIA request, albeit - as the MOD now states - by mistake.\n\n(m)\n\nManuals previously disclosed were redacted to remove personal data under section 40 but the front sheets were retained stating \"Crown Copyright Reserved\" and/or \"\"This information may be subject to privately owned rights\": references to \"use for defence purposes only\" and to \"security protection\" were deleted.\n\n(n)\n\nNo known proceedings for breaches of confidence or copyright or claims of prejudice to the suppliers' or their successors' commercial interests have been brought following those prior disclosures.\n\n(o)\n\nNo harm to the commercial interests of the MOD of any kind, including those categories identified by Ms Gardner, have been evidenced as a result of such disclosures.\n\nError of law or wrongful exercise of discretion\nin balancing the public interest\n\nIs there an error of law in the Commissioner’s Decision Notice?\n\n41.\n\nHaving made the above findings of fact, the remaining issues for the Tribunal are (a) whether the Commissioner made any error of law in his decision and (b) whether the Commissioner ought to have exercised his discretion differently.\n\nError of law in finding Section 41(1) FOIA not engaged?\n\n42.\n\nThe Tribunal first considered the Commissioner's guidance on section 41 FOIA and identified the following principles as particularly relevant to this case:\n\n(a)\n\nthe core principle is that section 41 protects confidential information by asking whether disclosure would amount to an actionable breach of confidence under the common law.\n\n(b)\n\nto rely on section 41, the authority must establish that (i) the information was obtained from another person and (ii) disclosure would amount to an actionable breach of confidence.\n\n(c)\n\nsection 41 will usually not apply to the authority's contract with a third party (as a contract is mutually agreed rather than \"obtained\" from the third party); however, section 41 may still apply to technical information supplied by a contractor.\n\n(d)\n\nthe public interest defence inherent in whether the breach is \"actionable\" is not the section 2 FOIA test: rather, it is whether a court would regard breach of confidence as justified because, for example, it would expose wrongdoing, negligence or maladministration; etc.\n\n43.\n\nThe Tribunal also considered the Commissioner's guidance on IP Rights and Disclosures under FOIA and extracted the following relevant principles:\n\n(a)\n\nthe fundamental proposition is that IP rights regulate what people may do with information\nafter\nit has been disclosed, but they do not generally prevent disclosure under FOIA.\n\n(b)\n\ndisclosure under FOIA does not infringe copyright, so the Commissioner is entitled to reject arguments for withholding information based on copyright alone.\n\n(c)\n\ncopyright survives disclosure as recipients remain bound by copyright law and may not simply reproduce or commercially exploit the material disclosed: IP rights-holders retain the usual enforcement remedies. Authorities may therefore disclose information whilst making clear that copyright remains and thus regulates how the information can be used after disclosure.\n\n(d)\n\nin relation to section 43, copyright does not automatically establish commercial prejudice: the authority must establish (1) whether the information actually has commercial value, and (2) whether copyright itself adequately protects that value after disclosure.\n\n(e)\n\nthe existence of copyright is not a reason for refusing a request because the requester uses a publication platform such as WhatDoTheyKnow. The question is whether disclosure engages a FOIA exemption, not whether republication may follow.\n\n(f)\n\nthe essential question asked by section 41 is whether disclosure would unlawfully breach a confidence owed to someone and whether a court would restrain that disclosure\n.\n\n(g)\n\nin short, copyright ownership, by itself, is not a reason to withhold information under section 41 and does not establish section 43 prejudice.\n\n44.\n\nThe Tribunal, when considering whether the DN contained any error of law in its analysis of section 41(1), applied the above principles to the facts in this case. Having done so, the Tribunal does not accept the MOD's submissions because:\n\nGround 1\n\nA.\n\nBurden of proof\n\n(i)\n\nAs the Commissioner's guidance makes clear, it is for the party relying on an exemption to establish that it is engaged, in this case by satisfying the three-part test in\nCoco\n.\n\n(ii)\n\nThe Commissioner accepted the first two parts of the test were met: the Tribunal is more doubtful. The first limb (necessary quality of confidence) requires the information to possess sufficient value or significance to warrant protection. As will be apparent below, the Tribunal is not persuaded that given the age of the manuals and the obsolescence of the equipment to which they relate that they do have \"sufficient value or significance\". As for the second limb (information imparted in circumstances importing confidence), the Tribunal is again doubtful the test is satisfied given the absence of any contemporaneous evidence about the contractual arrangements or any other circumstances importing confidence in relation to supply of the manuals over 45 years ago.\n\n(iii)\n\nIn any event, all\nthree\nelements of the test must be satisfied before going on to consider whether there is a public interest defence which would render an otherwise actionable breach of confidence justified (see e.g.\nHEFCE v IC §44\n).\n\nB.\n\nNature of detriment\n\n(i)\n\n\"Detriment\" is a necessary element of the third limb to render the breach \"actionable\" i.e. rather than theoretical, \"...something that would be upheld by the courts: for example, an action that is taken and won.\" (Hansard Vo. 619, col 176).\n\n(ii)\n\nThe MOD does not provide any authority to support its argument that detriment does not have to be established in relation to commercial confidences beyond mere loss of control.\n\n(iii)\n\nOf the authorities cited by the MOD,\nCoco\nand\nAG v Guardian Newspapers\n(\nSpycatcher\n)\n[1990] 1AC 109\ndo not address the issue;\nTchenguiz v Imerman\n[2010] EWCA Civ 908\nrelates to personal financial information;\nWeiss Technik v Davies\n[2022] EWHC 2773 (Ch)\nand\nInfinni Innovations v OFMS\n[2026] EWHC 470 (Comm)\n\nboth relate to deliberate and surreptitious misappropriation of confidential information for the purposes of a competing business; and\nI-Admin (Singapore) Pte Ltd v Hon Ying Ting\nand others\n[2020] SGCA 32\nis from outside the jurisdiction.\n\n(iv)\n\nEven though the Commissioner's recently updated guidance on section 41 accepts that \"loss of control\" from unauthorised disclosure of\nindividuals'\ninformation is itself a form of detriment, the guidance does not apply this concept to commercial confidences. Contrary to the MOD's submission, the Tribunal considers individuals' privacy rights differ from commercial confidentiality because the nature of loss of private personal information is qualitatively distinguishable from breach of commercial confidences.\n\n(v)\n\nMoreover, the MOD's argument that loss of control is sufficient detriment takes no account of the Commissioner's guidance on IP rights (with which Ms Gardner said she was familiar but this was not reflected in her witness statement, or oral evidence). The guidance states that since IP rights survive disclosure under FOIA, control is not lost but\nretained\nby the owner over how the protected asset is used post-disclosure.\nOfCom v IC and T-Mobile (UK) EA/2006/0078\nstated that release under FOIA does not grant an implied licence to exploit material commercially: recipients remain bound to respect subsisting IP rights. From this the Tribunal concludes that the existence of such rights does not mean that information is exempt from disclosure: the authority must still establish an actionable breach under section 41 if it wishes to withhold the information.\n\nC.\n\nEvidence of detriment\n\n(i)\n\nMOD relies on\nPage v IC\nfor the proposition that detriment is established where disclosure of a third party's proprietary materials would make them available for competitors and diminish the owner's ability to exploit them commercially: however, the evidence in this case falls far short of establishing any threat from competitors or likelihood of diminution of commercial exploitation opportunities by the rights-holders.\n\n(ii)\n\nUnlike\nPage\n, there is no evidence in this case about the original contracts under which the manuals were supplied and therefore the MOD's assertion that the third party's intellectual property was\nat the time\n\"licensed to it for limited internal use only\" with \"access being strictly controlled\" is unsubstantiated.\n\n(iii)\n\nMoreover in\nPage\n, the materials were in current use and, at the time of the FOIA request, a major part of the rights-holder's business. The Tribunal's then observation that \"...Enforcing copyright is slow, expensive and uncertain...\" as itself a detriment is understandable in that context. However, it is far removed from the situation in this case. Here there is no evidence that the manuals are (or ever were) a major part of the rights-holders' business, or that the manuals are in current commercial use at all or that at the date of the request the rights-holders would in reality seek to enforce copyright were the manuals to be disclosed.\n\n(iv)\n\nThere is also no evidence to back the MOD's claim that, because \"owners of repair and maintenance information routinely... charge for access to it\", the withheld manuals in this case retained any commercial value of that kind at the date of the request which a court would likely recognise if proceedings for breach of confidence were brought.\n\n(v)\n\nIn such circumstances, issues such as waiver of IP rights in the requested manuals or their previous publication are neither relevant nor material to the question whether their disclosure under FOIA would result in any breach of confidence being \"actionable\".\n\n(vi)\n\nOn the other hand, it is legitimate to draw an inference from the disclosure of very similar manuals (also relating to Bedford Trucks) in 2021 - without any known adverse impact - that the likelihood of detriment is low if the withheld information were to be disclosed. It is striking that the issue of IP rights which has featured heavily in this case\nwas\nrecognised previously as the MOD's earlier disclosure of AESPs in 2021 was expressly on the basis that copyright was reserved and/or that the information might be subject to privately owned rights.\n\n45.\n\nOverall, the Tribunal is not persuaded that the MOD has satisfied any of the three limbs of the\nCoco\ntest, particularly the third i.e. that any alleged breach of confidence in this case would be \"actionable\". In short, the Tribunal does not accept that a court would find any detriment to the IP rights-holders (whoever they may be) would be caused by disclosure of these decades-old manuals for redundant equipment such that a claim by such rights-holders would likely succeed. No public interest defence - which is a means to defeat an otherwise actionable breach - therefore arises.\n\n46.\n\nConsequently, the Tribunal found that the three-limb test for engagement of the section 41(1) FOIA exemption is not met so - consistent with the Commissioner's conclusion in the DN – the exemption in section 41(1) FOIA is not engaged\n\nError of law in finding Section 43(2) FOIA not engaged?\n\n47.\n\nThe Tribunal notes the Commissioner's guidance on section 43 FOIA and considers the following principles particularly relevant to this case:\n\n(a)\n\ndisclosure “would” (i.e. more probably than not) or “would be likely to” (i.e. as a real and significant risk, not speculatively) cause prejudice to commercial interests of any legal person (including the public authority itself).\n\n(b)\n\n\"prejudice\" means real harm, not generic assertions of commercial sensitivity: evidence of actual prejudice is required.\n\n(c)\n\nwhere prejudice to the commercial interests of third parties is claimed, the public authority must usually consult the third party and evidence that party's actual concerns rather than rely on speculation.\n\n(d)\n\ntiming is relevant: commercial sensitivity may diminish over time though not inevitably.\n\n(e)\n\neven where the exemption is engaged, disclosure must occur unless the public interest in maintaining the exemption outweighs the public interest in disclosure.\n\n48.\n\nThe Tribunal, when considering whether the DN contained any error of law in its analysis of section 43(2), applied the above principles to its findings of fact in this case. Having done so, the Tribunal does not accept the MOD's submissions because:\n\nCommercial interests of others\n\n(a)\n\nIn the absence of any evidence from the suppliers themselves (or their successors to any relevant IP rights), witness evidence from Ms Gardner - for example that the information is likely to have enduring value because around the world the equipment is still used or converted into horseboxes and campervans etc; and that manufacturers can and do levy charges for such information - asserts or presumes commercial interests of third parties rather than substantiates it with any evidence beyond vague references to \"internet searches\", the results of which were not provided to the Tribunal.\n\nCommercial interests of the MOD\n\n(b)\n\nThe Tribunal is not satisfied that the MOD has established a real and significant risk of prejudice to its own commercial interests. The alleged impact on supplier confidence and future procurement is supported by no direct evidence and amounts largely to a \"chilling effect\" argument. The Tribunal attaches limited weight to this, noting the observations of the Upper Tribunal in\nDavies v Information Commissioner and Cabinet Office\n[2019] UKUT 195 (AAC)\n.\nCommercial suppliers dealing with the MOD can reasonably be expected to appreciate the possibility that information may, in appropriate circumstances, be disclosed under FOIA many years after the relevant equipment has ceased to be operational. The Tribunal considers it unlikely that the disclosure of the requested manuals would materially affect suppliers' willingness either to contract with the MOD or to provide proprietary information. No plausible evidence of such has been adduced.\n\n(c)\n\nThe Tribunal considers that, given the age of the manuals requested (all at least 35 years old) and the narrowness of their scope, in the absence of any specific evidence it is hard to identify what commercial interests would be harmed should the requested information be disclosed. The MOD no longer uses the equipment, nor has it produced any meaningful evidence to demonstrate that others use that equipment for its original purposes nor that, even if they do, the manuals had any commercial value to either the equipment users or the current IP rights -holders at the date of the requests.\n\nPrejudice to commercial interests\n\n(d)\n\nAs previous manuals for Bedford Trucks of a similar era (dating from 1983-1997) were disclosed by the MOD in 2021:\n\n(i)\n\nboth the manuals and related equipment are apparently updated with reasonable frequency and would inevitably - particularly given the advances in vehicular technology over past decades - have been vastly superseded by more modern equipment (and hence manuals) since, thereby greatly reducing the manuals' commercial value due to the age and obsolescence of the equipment itself.\n\n(ii)\n\nno evidence has been adduced of any harm caused by that earlier disclosure of similar manuals affecting the commercial interests of either the suppliers of the manuals (or their successor rights-holders) or the MOD, including the various categories of \"chilling effect\" harm asserted by the MOD.\n\n(iii)\n\nthe absence of any (known) adverse consequences from the prior disclosures five years ago are difficult to reconcile with the suggestion of likely serious adverse consequences were the currently withheld manuals to be disclosed.\n\n(e)\n\nFor reasons which the MOD has explained, neither the original suppliers of the manuals nor those who have since acquired the related IP rights can be traced. Ms Gardner's statement exhibits an undated, unattributed and unsigned paper from ADS as evidence of consultation with a defence industry association. The Tribunal places little weight on this evidence. It is principally concerned with IP rights and the public interest defence applicable to section 41(1) yet makes no explicit reference to that section or to the Commissioner's guidance on IP Rights and Disclosures under FOIA. It does not address the statutory requirement for \"detriment\" under the section 41(1) exemption nor provide any evidence of such. Nor does ADS mention the \"commercial interests\" exemption under section 43(2) or provide any specific evidence of real or likely prejudice to any identified commercial interests. Finally, ADS's paper is seemingly premised on potential changes to or reinterpretation of FOIA. No such changes or reinterpretation are in issue here\n: the Tribunal is applying existing law, principles and interpretation to the particular facts of this specific case.\n\n49.\n\nIn short, the Tribunal does not accept that disclosure would create any real or significant risk of prejudice to the commercial interests of either third parties or the MOD. Any such prejudice claimed is speculative.\n\n50.\n\nOverall, the Tribunal is not satisfied that the three-step test for engagement of the section 43(2) FOIA exemption is met.\n\n51.\n\nConsequently, the Tribunal found that - consistent with the Commissioner's findings in his DN – the exemption in section 43(2) FOIA is not engaged.\n\nConclusion\n\n52.\n\nFor the above reasons, the Tribunal finds that the Commissioner’s DN was not wrong in law.\n\n53.\n\nHaving found that neither the exemption in section 41(1) nor that in section 43(2) FOIA is engaged, the Tribunal did not go on to consider the balance of the public interest applicable to the latter exemption under section 2(1) FOIA.\n\n54.\n\nThe appeal is dismissed.","changes":[]}