"(1) This section applies to specified information which relates to- (a) the affairs of an individual; (b) any business of an undertaking. (2) Such informatiom 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."
"(1) A public authority [here: the Commission] which holds information to which section 237 applies may disclose that information for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment. (2) If information is disclosed under subsection (1) so that it is not made available to the public it must not be further disclosed by a person to whom it is so disclosed other than with the agreement of the public authority for the purpose mentioned in that subsection."
"(2) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the authority thinks is contrary to the public interest. (3) The second consideration is the need to exclude from disclosure (so far as practicable) - (a) commercial information whose disclosure the authority thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or (b) information relating to the private affairs of an individual whose disclosure the authority thinks might significantly harm the individual's interests. (4) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3)(a) or (b) is necessary for the purpose for which the authority is permitted to make the disclosure."
" (a) the desirability of Groups taking a consistent approach when applying the principles of disclosure; (b) the desirability of avoiding unnecessary burdens on business, the need to conduct investigations effectively and efficiently, the need to reach properly reasoned decisions within statutory and administrative timescales; (c) the need to disclose information supplied to the [Commission] so that interested persons (main parties or other interested persons) are able to comment on matters affecting them and so that they can draw to the [Commission's] attention any inaccuracies, incomplete or misleading information; (d) the need to protect some information provided to it in the course of its inquiries or reviews and the importance of maintaining the [Commission's] reputation for doing so; (e) the [Commission's] analysis as it affects them; and (f) the desirability of making sufficient information available to the public so that the public may become aware of the main issues arising in inquiries and reviews and are in a more informed position to provide information to the Group. These considerations may inform the Group as to whether particular information should be disclosed, to whom and the manner of disclosure."
"The [Commission's] rules require the [Commission] to publish a number of documents, notably the provisional findings and notice of possible remedies, during an investigation. Additionally, the [Commission] has developed a practice of consulting on its provisional decision on remedies (usually through disclosure to the merger parties in merger inquiries and publication in market investigations). The disclosure of provisional findings and a provisional decision on remedies is the main means by which the [Commission] ensures due process and fulfils its duty to consult on certain decisions under section 104 of the Act. When reviewing remedies, the [Commission] similarly publishes a provisional decision either before or as part of publishing a notice of intention to vary or terminate undertakings or orders."
"9.14 Groups will often have to consider how information contained in any disclosed documents should be presented or how access should be allowed to confidential information in order to provide protection. There are a number of possible ways in which confidential information may be protected including: (a) provision of ranges as an alternative to providing exact figures (for example, when indicating market shares...); (b) provision of aggregated data as an alternative to individual responses or data (for example, by aggregating sales or purchase figures or by providing a summary of responses from customers); (c) provision of aggregated summaries of submissions and responses to questionnaires; (d) excision of the confidential information from documents (for example, of names, locations and data) when the information excised is not material to the [Commission's] inquiries or its decision or where the excision does not affect the comprehension of the document for the reader concerned; (e) anonymizing the information; (f) disclosure to one or more parties but without publication; (g) disclosure subject to restrictions (for example, disclosure to parties' professional advisers subject to receipt of undertakings); and (h) use of a data room (for example, when a Group considers that access to specific data should be provided but that the sensitivity of the information concerned necessitates additional safeguards to protect the information... 9.15 Of the forms identified in paragraph 9.14, the first four methods will be the usual approaches to take. The sixth, (f) is generally applicable when a Group considers it necessary to disclose a working paper (or part of a working paper) to a party for reasons of due process, and the information is pertinent to one party only. This may also be the method deployed when a Group is concerned that wider publication could be harmful to the functioning of the market."
"9.17 The use of a data room is an option that may be considered when a Group is satisfied of the need to disclose the information for reasons of due process but considers that, due to the nature of the information, additional safeguards are appropriate. Use of a data room has the advantage of limiting further use of the information (and, in the case of surveys, may be a way of ensuring that the identity of individual respondents remains anonymous). However, because of the resource implications associated with their operation they should be used sparingly. 9.18 As their name implies, data rooms may be used when a Group concludes that it is appropriate to provide access to data in order to enable the parties' economic advisers to gain further understanding of the [Commission's] analysis and to examine the data in order to respond to the [Commission's] findings. It will seldom be appropriate to allow access to the parties' other advisers or to use a data room to enable greater access to other information. Those having access to a data room are bound by the rules which the [Commission] applies to the data room and also to undertakings which they provide. These make provision for the proper conduct of the data room and restrict the use and further disclosure of information to which the advisers have access. 9.19 The point at which access should be provided will depend upon the circumstances of the case. Generally, a Group should be resistant to requests made early in an investigation when the relevance of the information requested remains unclear. This is because of the sensitivity of the information and also the resource implications of setting up a data room. Groups may wish to consider both the need for and alternatives to a data room..."
"The Competition Commission has excluded from this published version of the provisional findings report information which the inquiry group considers should be excluded having regard to the three considerations set out insection 244 of the Enterprise Act 2002 (specified information: considerations relevant to disclosure). The omissions are indicated by [ " ]. Some numbers have been replaced by a range. These are shown in square brackets. Non-sensitive wording is also indicated in square brackets."
"In relation to individual PMIs, [ " ]."
"The report contains extensive Data (as defined by the Disclosure Room Rules) which is not Own Client Data contrary to Rule 11. Indeed, BMI's advisers acknowledge at the beginning of the report that in preparing the report 'no account has been made of the confidential nature of any of the information included' in the report. I refer to our email exchanges at the end of last week and in particular my email to you of 6 September (15.36) and my email of the same date at 18.12 addressed to Chris Bright. In those emails I made clear that BMI's interpretation of the undertakings and rules as enabling it to remove from the disclosure room any information it considers relevant to BMI's defence was incorrect. I also made clear that only Own Client Data or data derived solely from Own client data could be removed. BMI's advisers signed the undertakings which were provided to the [Commission] on Monday morning confirming that they would comply with the rules of the Disclosure Room. We will be making extensive redactions to the report prepared by BMI's advisers. Because of the way in which BMI's advisers have prepared the report in particular by not differentiating between Own Client data and non-Own Client data and given the need for the [Commission] to review two other reports within 48 hours if there is any ambiguity on whether the information is Own Client Data or derived solely from Own Client the data we will excised [ sic ]. The information which is excised we will treat as a further request by BMI for disclosure. As you are aware we are considering BMI's various requests for additional disclosures together with those of other parties. We will revert to BMI in due course with respect to this request as well as the others."
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."
"One of the basic requirements of procedural fairness is that the decision-maker must disclose to the person affected, in advance of the decision, information of relevance to the decision so that the person affected has an opportunity to controvert it or to comment on it."
" Mr. Buckley argued that the correct test is Wednesbury unreasonableness, because there could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz., the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substance and procedure. If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice. The test cannot be different, just because the tribunal decides to adopt a procedure which is unfair. Of course the court will give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel. But in the last resort the court is the arbiter of what is fair. I would therefore agree with Mr. Oliver that the decision to hold the hearing on 2 September is not to be tested by whether it was one which no reasonable tribunal could have reached."
"Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party ("the excluded party") knowing, or being able to test, the contents of that evidence and those arguments ("the closed material"), or even being able to see all the reasons why the court reached its conclusions."
"Further to our conversation this afternoon, I thought it might be helpful to re-iterate and expand on my comments regarding the ability of advisers to request that particular Non-Own Client Data be removed from the Disclosure Room and, if so, subject to what conditions. We do consider as I mentioned that a blanket ability on advisers to remove any information would undermine the purpose of the Disclosure Room. Whilst, the Disclosure Room rules and undertakings have been established as per my earlier email, as I mentioned if a party's advisers consider that particular information is important to their defence that they need to remove it from the Disclosure Room, they can make that request to us, and this may be permitted and may be subject to particular safeguards. For example, we have already received a request in relation to the basket of treatments and are considering the basis on which the parties' advisers (e.g. economic) may be provided with a copy."
"Whilst in practice this is the position, we have expressly referenced that representations can be made with regard to redactions to the report."