The Secretary of State for Defence v The Information Commissioner [2026] UKFTT 1169 (GRC)

[2026] UKFTT 01169 (GRC)Case Reference: FT/EA/2025/0324
First-tier Tribunal
(General Regulatory Chamber)
Hearing Hearing date: 9 July 2026Date 19 August 2026
Information Rights
Before
JUDGE A. MARKS CBEMEMBER K. GRIMLEY EVANSMEMBER H. ANDALL
Between
The SECRETARY OF STATE FOR DEFENCEAppellantTHE INFORMATION COMMISSIONERRespondentTimothy Pitt-Payne KC and Richard Hanstock, Counsel for AppellantNatalie Nguyen, Counsel for RespondentDecision: The appeal is dismissed.REASONS

Introduction

[1]This is an appeal by the Ministry of Defence (“the MOD”) against the Information Commissioner’s decision notice IC‑353552‑M1L8 and IC‑358729‑N5Y3 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.[2]In 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.[3]In this decision, references to FOIA are to the Freedom of Information Act 2000 and references to sections are to sections of that Act unless otherwise stated.

The requests for information, internal review and responses

[4]The requests for information, internal review and responses Mr Ellis's first request ("Request 1") on 28 October 2023 was as follows:
“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.”
[5]On 23 November 2023 the MOD responded that it did not hold AESP 3830‑K‑100 (Bunce). It confirmed that it held AESP 3830‑K‑102 (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 thirdparty consultation prevented it from proposing a meaningful refinement of the request.[6]Mr 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:(a) 2320-R-200-201 Operating Information;(b) 2320-R-200-522 Repair Instructions;(c) 2320-R-200-532 Inspection Standards; and(d) 2320-R-200-533 Inspection Standards.[7]By 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.[8]On 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.

The Commissioner’s investigation and Decision Notice

[9]The Commissioner’s investigation and Decision Notice Mr 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‑K‑100 was not held. He also challenged reliance on section 14(1) in relation to both requests.[10]During the Commissioner's investigation, the MOD reconsidered its position.[11]On 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).[12]The Commissioner therefore investigated:(a) whether the MOD held AESP 3830‑K‑100; and(b) whether the remaining requested manuals were exempt under sections 41(1) and/or 43(2).[13]In 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.[14]In 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.[15]In 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.[16]The DN accordingly required the MOD to disclose AESP 3830‑K‑102 together with the four Bedford manuals requested.

Appeal to the Tribunal

[17]Appeal to the Tribunal On 5 September 2025, the MOD's representative sent a Notice of Appeal to the Tribunal challenging the DN.[18]The 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.[19]The 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.

Commissioner's Response to the Appeal

[20]Commissioner's Response to the Appeal The Commissioner responded that the appeal should be dismissed because the DN correctly concluded that sections 41(1) and 43(2) were not engaged.[21]The Commissioner contended that the MOD's arguments either misstate the law or amount to disagreement with the Commissioner's evaluative assessment of the evidence.

The Law

[22]The Law The relevant statutory provisions are set out below.

Section 41(1) - information provided in confidence

[23]Section 41(1) - information provided in confidence Section 41(1) provides: “Information is exempt information if—(a) it was obtained by the public authority from any other person; and(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.[24]The Commissioner considered the principles identified in Coco v A.N. Clark (Engineers) Ltd [1968] FSR 415 that(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.[25]"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.[26]"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.[27]"Actionable" means likely to succeed, which is more than merely plausible or arguable: the authority must show that a breach of confidence action would likely succeed on the balance of probabilities.

Section 43(2) - commercial interests

[28]Section 43(2) - commercial interests Section 43(2) states:
“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).”
[29]The Commissioner applied the well‑established three‑stage 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.

Sections 57 and 58: the role of the Tribunal

[30]Sections 57 and 58: the role of the Tribunal Section 57 entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.[31]Under 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.[32]The Tribunal can also review any finding of fact on which the decision notice was based.

Evidence

[33]Evidence The 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.[34]The Tribunal was also provided with an Authorities Bundle and a Closed Bundle containing the manuals held by the MOD but 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 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.

Submissions

[37]Submissions Summary of submissions on behalf of the Appellant (the MOD) The 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:a. A. Burden of proof - 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.b. B. Nature of detriment - 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.c. C. Evidence of detriment - 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. (b). While 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. 40. Ground 2 (c) In relation to section 43(2) the MOD submits: A. Commercial interests of others(i) The 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.(ii) The 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. B. Commercial interests of the MOD (i) The 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. (ii) 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) 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").(iii) The Commissioner conflated the protection afforded by section 43(2) with the narrower protection for trade secrets under section 43(1). C. Prejudice to commercial interests (i) Release 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. (ii) The 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. (iii) The 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. (d) When 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.[38]Ground 1 (a). In relation to section 41(1), the MOD submits: The MOD seeks substitution of the DN as the entirety of the withheld information is exempt under section 41(1) and/or section 43(2).

Summary of submissions on behalf of the Commissioner

[39]Summary of submissions on behalf of the Commissioner The Commissioner challenges the MOD's arguments and invites the Tribunal to dismiss the appeal. (a). Section 41(1) is not engaged because:a. A. Burden of proof(i) The burden relied upon by the MOD in Page v IC and School of Sexuality Education [2023] UKFTT 00476 (GRC) (upheld by the Upper Tribunal Page v IC [2025] UKUT 308 (AAC)) concerns the public interest defence and only arises once the Coco test is satisfied.(ii) The Commissioner's finding was directed to the third limb of the Coco test (detriment), in respect of which the MOD, as the party relying on the exemption, bore the burden of proof.(iii) The Commissioner relies on Higher Education Funding Council for England v IC & Guardian News and Media Ltd[EA/2009/0057} as authority that, in cases involving commercial confidences, detriment must be proved by the authority seeking to rely on section.(iv) There 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.b. B. Nature of detriment (i) The Commissioner rejects the contention that detriment is unnecessary in cases involving commercial confidences. (ii) The 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. (iii) The Commissioner's reliance on the same considerations underpinning his section 43 analysis did not amount to an unlawful conflation of the two exemptions. (iv) The MOD has identified no non-commercial interests or other material factors that the Commissioner failed to consider when assessing detriment.(v) Developments in the law concerning personal and private information do not remove the requirement to establish detriment in cases concerning commercial confidences.(vi) The MOD is effectively inviting the Tribunal to depart from the existing case law on section 41 without justification.c. C. Evidence of detriment (i) The 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. (ii) Assertions that there is no evidence of confidentiality being waived or the information being published does not establish detriment. (iii) The MOD has not explained why similar AESP material has previously been disclosed nor has it positively established that confidentiality obligations continue to subsist. (iv) On the MOD's reasoning, all information supplied under contract could become permanently exempt without proof of detriment, which is inconsistent with section 41 FOIA. (v) The MOD accepts that it cannot reliably identify the current IP rights- holders and is therefore unable to identify any continuing confidence or specific detriment. (vi) The 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. (b). The public interest defence only arises if the Coco requirements 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. 45. Ground 2 (c). As 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: A. Commercial interests of others (i) The 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. (ii) The 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. (iii) The 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. (iv) The MOD has produced no positive evidence of prejudice to any identified third party and has not distinguished the withheld AESPs from those previously disclosed. (v) The MOD has failed to identify either the third parties affected or the specific commercial interests that would allegedly be prejudiced. (vi) Section 43(2) requires prejudice to be grounded in actual knowledge of third party concerns and not on assumptions made in the absence of evidence.(vii) The MOD improperly seeks to reverse the burden of proof by suggesting prejudice should be presumed because there is no evidence of waiver or publication. B. Commercial interests of the MOD (i) The claimed impact on future procurement and contractor confidence is hypothetical and insufficient to satisfy the requirement that prejudice be real, actual or of substance. (ii) Prospective contractors can distinguish between disclosure of decades-old manuals and disclosure of commercially significant contemporary information. (iii) IP rights do not prevent disclosure under FOIA and continue to subsist after disclosure. (iv) The 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. (v) Assertions 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. C. Prejudice to commercial interests This ground does not identify any separate error of law and merely repackages the MOD's disagreement with the Commissioner's evaluative conclusions. Discussion and decision The facts

Discussion and decision

[40]Ground 1 The 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):(a) AESP manual 3830 K 100 Snow plough truck mounting (Bunce) is not held.(b) The remaining requested manuals are held and are dated between July 1985 and May 1990.(c) The vehicles to which the manuals relate are no longer used by MOD and are no longer manufactured.(d) The manuals are for maintenance and repair of the vehicles/equipment and do not contain pricing or other commercial information.(e) Examples 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.(f) If such users have used the requested manuals, no payment for such use has been established.(g) 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) No 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.(i) No contractual obligations 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.(j) Surrounding 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.(k) Despite detailed investigations by the MOD, the current owners of any proprietary rights in the manuals have not been identified.(l) Similar 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.(m) Manuals 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) No 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.(o) No 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. Error of law or wrongful exercise of discretionin balancing the public interest Is there an error of law in the Commissioner’s Decision Notice?

Error of law or wrongful exercise of discretionin balancing the public interest

[41]Having 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.

Error of law in finding Section 41(1) FOIA not engaged?

[42]Error of law in finding Section 41(1) FOIA not engaged? The Tribunal first considered the Commissioner's guidance on section 41 FOIA and identified the following principles as particularly relevant to this case:(a) the 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.(b) to 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.(c) section 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.(d) the 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.[43]The Tribunal also considered the Commissioner's guidance on IP Rights and Disclosures under FOIA and extracted the following relevant principles:(a) the fundamental proposition is that IP rights regulate what people may do with information after it has been disclosed, but they do not generally prevent disclosure under FOIA.(b) disclosure under FOIA does not infringe copyright, so the Commissioner is entitled to reject arguments for withholding information based on copyright alone.(c) copyright 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.(d) in 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.(e) the 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.(f) the 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.(g) in short, copyright ownership, by itself, is not a reason to withhold information under section 41 and does not establish section 43 prejudice.[44]The 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: Ground 1a. A. Burden of proof(i) As 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 Coco.(ii) The 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.(iii) In any event, all three elements 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. HEFCE v IC §44).b. B. Nature of detriment (i) "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). (ii) The 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. (iii) Of the authorities cited by the MOD, Coco and AG v Guardian Newspapers (Spycatcher) [1990] 1AC 109 do not address the issue; Tchenguiz v Imerman[2010] EWCA Civ 908 relates to personal financial information; Weiss Technik v Davies[2022] EWHC 2773 (Ch) and Infinni Innovations v OFMS[2026] EWHC 470 (Comm) both relate to deliberate and surreptitious misappropriation of confidential information for the purposes of a competing business; and I-Admin (Singapore) Pte Ltd v Hon Ying Tingand others[2020] SGCA 32 is from outside the jurisdiction.(iv) Even though the Commissioner's recently updated guidance on section 41 accepts that "loss of control" from unauthorised disclosure of individuals' information 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.(v) Moreover, 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 retained by the owner over how the protected asset is used post-disclosure. OfCom v IC and T-Mobile (UK) EA/2006/0078 stated 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.c. C. Evidence of detriment (i) MOD relies on Page v IC for 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. (ii) Unlike Page, 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 at the time "licensed to it for limited internal use only" with "access being strictly controlled" is unsubstantiated. (iii) Moreover in Page, 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. (iv) There 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. (v) In 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".(vi) On 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 was recognised 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.[45]Overall, the Tribunal is not persuaded that the MOD has satisfied any of the three limbs of the Coco test, 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.[46]Consequently, 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

Error of law in finding Section 43(2) FOIA not engaged?

[47]Error of law in finding Section 43(2) FOIA not engaged? The Tribunal notes the Commissioner's guidance on section 43 FOIA and considers the following principles particularly relevant to this case:(a) disclosure “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).(b) "prejudice" means real harm, not generic assertions of commercial sensitivity: evidence of actual prejudice is required.(c) where 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.(d) timing is relevant: commercial sensitivity may diminish over time though not inevitably.(e) even where the exemption is engaged, disclosure must occur unless the public interest in maintaining the exemption outweighs the public interest in disclosure.[48]The 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: Commercial interests of others(a) In 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. Commercial interests of the MOD(b) The 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 Davies v Information Commissioner and Cabinet Office [2019] UKUT 195 (AAC). Commercial 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.(c) The 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. Prejudice to commercial interests(d) As previous manuals for Bedford Trucks of a similar era (dating from 1983-1997) were disclosed by the MOD in 2021: (i) both 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. (ii) no 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. (iii) the 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.(e) For 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: the Tribunal is applying existing law, principles and interpretation to the particular facts of this specific case.[49]In 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.[50]Overall, the Tribunal is not satisfied that the three-step test for engagement of the section 43(2) FOIA exemption is met.[51]Consequently, the Tribunal found that - consistent with the Commissioner's findings in his DN – the exemption in section 43(2) FOIA is not engaged.

Conclusion

[52]Conclusion For the above reasons, the Tribunal finds that the Commissioner’s DN was not wrong in law.[53]Having 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.[54]The appeal is dismissed.