Suffolk Befriending Scheme t/a The Befriending Scheme v Information Commissioner [2025] UKFTT 646 (GRC)

[2025] UKFTT 00646 (GRC)Case Reference: FT/EA/2024/0453
First-tier Tribunal
General Regulatory Chamber
Date 10 June 2025
Information Rights
Decided without a hearing
Before
JUDGE HAZEL OLIVERMEMBER Dr PHEBE MANNMEMBER PAUL TAYLOR
Between
SUFFOLK BEFRIENDING SCHEME T/A THE BEFRIENDING SCHEMEAppellantINFORMATION COMMISSIONERRespondentDecision: The appeal is DismissedREASONS

Background to Appeal

[1]This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 24 October 2024 (IC-319885-K0C2, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about allegations made against the Appellant charity requested from the Charity Commission.[2]The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).[3]On 6 March 2024, the Appellant wrote to the Charity Commission and requested the following information (the “Request”):
“We, the Trustees of the Suffolk Befriending Scheme for People with Learning Difficulties (TBS/the Charity) Charity Number 1074800), would like to make a Freedom of Information request for information relating to what we understand to be serious recently made allegations against the Charity and the Trustees of the Charity to the Charities Commission (CC). We believe these allegations were made to the CC in May 2023 and in February 2024 by an employee who has launched an employment action against the Charity alleging discrimination. In our view the employee's allegations are completely without substance and the Charity with the full support of the Trustees intends to defend the action vigorously. The Charity would like to assess the allegations made to the CC to confirm our suspicion that they were vexatiously made as part of a concerted campaign designed to benefit the employee at the expense of the Charity.”
[4]The Appellant had previously (in July 2023) made a serious incident report to the Charity Commission, relating to an allegation that was brought to the attention of the trustees by a member of staff who was pursuing a grievance. The allegations were also reported by the same staff member to funders and the police. They were investigated and found to be groundless. Separately, on 20 February 2024 the Charity Commission wrote to the Appellant about some potential regulatory concerns. The Appellant wanted to know whether these concerns arose from allegations/complaints that had been made about them, who had done so, and whether they were linked to the previous staff member’s conduct. On 5 March 2024, the Appellant asked for the identity of the people who had made complaints, referring to an ex-employee and their legal adviser. The Charity Commission replied with information about how to make a freedom of information request, and the Appellant sent the Request the next day. The Appellant separately provided a response to the regulatory concerns. On 28 March 2024, the Charity Commission issued some general advice but took no further action.[5]The Charity Commission responded to the FOIA request on 5 April 2024 and refused to confirm or deny whether it held the information, relying on section 31(3) FOIA (prejudice to the public authority’s functions) and 40(5) FOIA (personal information). They maintained this position on review.[6]The Appellant complained to the Commissioner on 8 July 2024. The Commissioner decided:a. The exemption in section 31(3) was engaged. This was on the basis that complying with the duty to confirm has the potential to disclose to the world at large information that isn’t in the public domain, which could damage the trust stakeholders place in the Charity Commission, and prejudice its ability to exercise its functions under the Charities Act 2011.b. Disclosure of the information (if held) would help inform public debate and demonstrate that the Charity Commission is effectively regulating the charity sector. However, the balance of the public interest would be better served by preserving stakeholder trust and allowing it to perform its statutory functions as robustly and efficiently as possible.

The Appeal and Responses

[7]The Appellant appealed on 20 November 2024. Their grounds of appeal are:a. They are seeking information about complaints and identities of complainants because of concerns about a conspiracy to cause financial and reputational damage to the charity, its employees and trustees.b. The Charity Commission had already confirmed to them that they had material, but it would need to be formally requested under FOIA.c. They believe there have been false and malicious complaints against the charity, and there is public interest in investigating, prosecuting and deterring further false claims about the conduct of a charity.[8]The Commissioner’s response maintains that the Decision Notice was correct. The Commissioner says that the Appellant’s motivation cannot determine whether the exemption is engaged, and any private confirmation about information held is very different from disclosure to the public as a whole under FOIA. The Charity Commission is able to investigate false information provided to it without disclosure under FOIA. The Commissioner maintains he was correct to give weight to the Charity Commission’s arguments as it is the public body entrusted by Parliament to make decisions regarding the regulation of charities.

Applicable law

[9]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. …….[31]Law enforcement.(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice— … (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2). … (2). The purposes referred to in subsection (1)(g) to (i) are— … (f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration. … (3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1). ……. 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.[10]Section 31 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.[11]The approach to be taken prejudice-based exemptions was set out in the First Tier Tribunal decision of Hogan and Oxford City Council 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

[12]The issue is whether the Charity Commission was entitled under section 31(3) FOIA to neither confirm nor deny whether it held the requested information. The Tribunal will decide:a. Was section 31(3) engaged?b. If so, did the public interest in maintaining the exemption outweigh the public interest in confirming or denying that the requested information is held?[13]By way of evidence and submissions we have read and considered an agreed bundle of open documents, which includes the appeal, response, and supporting documents from the Appellant.

Discussion and Conclusions

[14]In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. 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. We deal in turn with the issues.[15]Was section 31(3) engaged? This depends on whether informing the Appellant under FOIA whether the Charity Commission held the requested information would, or would be likely to, prejudice the Charity Commission’s exercise of its functions. The relevant purposes here arethepurpose of protecting charities against misconduct or mismanagement in their administration.[16]The Charity Commission regulates charities under the Charities Act 2011. Its functions include identifying and investigating apparent misconduct or mismanagement in the administration of charities, and taking appropriate remedial or protective action in connection with misconduct or mismanagement (see section 15(1) of the Charities Act). This clearly falls within section 31(2)(f) FOIA.[17]The applicable interests within this exemption are ensuring that the Charity Commission can carry out these functions effectively in the public interest. The Charity Commission is the regulator tasked with ensuring that charities which operate for the public benefit are managed correctly. In carrying out this function it relies on information provided by those involved with charities and by members of the public, including through complaints. This is one of the main ways in which matters that require investigation are brought to the Charity Commission’s attention.[18]We are satisfied that there is a causal relationship between the potential disclosure and the prejudice, and that prejudice is “real, actual or of substance”. The Charity Commission relies on its complaints process as being a safe space for matters to be raised and discussed. Confirming or denying whether a complaint has been made against a particular charity would potentially deter people from using the complaints process, particularly where the context of a request means that it might be possible to identify (whether correctly or incorrectly) who had made a complaint. We accept that this might also undermine trust from charities themselves. As explained more broadly by the Charity Commission in its internal review response, “If charities recognise that the Commission confirmed and disclosed details of regulatory engagements of different types, this would likely risk inhibiting the Commission’s ability to gather information and maintain open channels of communication between the Commission, the sector and third parties”. We accept that an effective investigation process relies on both complainants and charities feeling able to communicate openly with the Charity Commission.[19]We have considered whether confirming or denying that this information is held “would be likely to” cause this prejudice. We accept this is a real and significant risk, particularly in the context of this particular Request. We have set out the full wording of the Request in paragraph 3 above, which refers to a particular employee. We do not know who, if anyone, made a complaint about the Appellant. However, if the Charity Commission had confirmed that it held information in response to the Request, this could be seen as confirming the identity of the person who had made the complaint (whether this was correct or not). This would be likely to undermine trust in the Charity Commission’s complaints process, and so make people less willing to come forward with complaints about misconduct or mismanagement by charities. It would also undermine trust from charities themselves if details about complaints (whether valid complaints or not) are released under FOIA. If the Charity Commission did not hold the information, it is well established that a neither confirm nor deny response would still be appropriate in order to maintain a consistent position and not undermine the exemption. Otherwise, it would be possible to infer when information was held in other cases.[20]We note what the Appellant has said about the background to the Request. This is a slightly unusual situation as the Appellant is asking about complaints made against its own charity. We accept that the Appellant has genuine concerns about financial and reputational damage that could be caused to the charity through complaints. This does not, however, prevent the exemption from being engaged. It does not affect the prejudice caused to trust in the complaints and investigation process from those who wish to raise issues about misconduct or mismanagement. And, although in this case the affected charity itself requested the information, confirmation under FOIA would still affect whether other charities can trust that such information will be kept confidential. FOIA is applicant and motive blind, and it makes no difference to the analysis here that the requestor in this case is the charity itself.[21]We have also considered the Appellant’s point that the Charity Commission had already told them that a complaint has been made against them. This was in private correspondence between them. As explained in the Commissioner’s response, this is quite different from confirmation under FOIA, which is given to the world at large with no limits on what can then be done with the information. We can understand that the Appellant may find this frustrating. However, the damage to trust in the Charity Commission that would be caused by a confirmation under FOIA, does not apply in the same way to private discussions with a charity about a specific complaint.[22]We therefore find that the exemption under section 31(3) FOIA is engaged. Informing the Appellant whether the Charity Commission held the requested information would be likely to prejudice the Charity Commission’s exercise of its functions.[23]Did the public interest in maintaining the exemption outweigh the public interest in confirming or denying that the requested information is held? We have considered the public interests for and against confirmation or denial.[24]There are public interests in favour of confirming or denying whether the requested information is held. There are general interests in transparency and education on how the Charity Commission carries out its functions – although simply confirming or denying whether a complaint has been made would only further these interests in a limited way. In this case, there are also some more specific interests. The Appellant has raised concerns about false and/or malicious complaints being made against them. If such complaints are being made and are damaging a charity that operates for the public benefit, it may well be in the public interest to know more about this. We do not know whether false complaints have, in fact, been made against the Appellant. But, we do accept the Appellant’s point that there is public interest in investigating, prosecuting and deterring further false claims about the conduct of a charity. Confirming or denying whether complaints have been made would be very relevant to this public interest.[25]The public interests against confirming or denying whether the requested information is held relate to the prejudice that we have already identified. The Charity Commission carries out an essential public function of regulating charities, which includes investigating misconduct or mismanagement. Anything that makes it less likely that people will report misconduct or mismanagement would damage the public interest. Put another way, there is a strong public interest in ensuring that the Charity Commission provides a trusted safe space for people to report concerns, without fearing that their complaint or identity will be disclosed to the world at large under FOIA. We have found that confirming or denying the requested information in this case would be likely to prejudice the Charity Commission’s functions in this way.[26]Having considered the public interests on both sides, we find that the public interest in maintaining the exemption does outweigh the public interest in confirming or denying that the requested information is held. The prejudice to the Charity Commission’s functions is sufficiently strong to outweigh the general and specific public interests in confirmation or denial.[27]We dismiss the appeal for the reasons explained above.