DfE Processing of KWC Related FOI Requests
| Authority | Department for Enterprise |
|---|---|
| Date received | 2025-07-31 |
| Outcome | Not upheld |
| Outcome date | 2025-10-13 |
| Case ID | 4842305 |
Summary
The requester sought internal Department for Enterprise documents generated during the processing of two previous FOI requests regarding King William's College funding and due diligence. The Information Commissioner's Office review concluded the request was not upheld, citing that disclosure would harm commercial interests and business confidence.
Key Facts
- The request targeted internal emails and documents created between April and July 2025 regarding KWC financial support.
- The outcome of the review was 'Not upheld' on 13 October 2025.
- Officials argued that confidentiality is essential for the Financial Support Scheme to attract business and maintain economic growth.
- The Public Interest Test was applied on a case-by-case basis, weighing commercial harm against transparency.
- The Department determined that releasing the information would provide competitors with sensitive market data.
Data Disclosed
- 4842305
- 4587906
- 4648817
- 2025-07-31
- 2025-10-13
- 14th April 2025
- 12th May 2025
- 18th June 2025
- 12th September 2025
- 16
- 4
- s26
Exemptions Cited
- Commercial interests
- Business confidence
- Prejudice to competitive position
- Information Provided in Confidence (Section 26 considered but deemed inapplicable as source was internal)
Original Request
I seek such information held by the DfE that was generated as a result of the submission of the following FOI Requests and FOI Internal Review Requests associated with the same: FOI Request 4587906 (Grant/Loan of Public Money to King William's College) submitted 14th April 2025; and FOI Request 4648817 (KWC - Due Diligence, Directors' Reports & Financial Statements) submitted 12th May 2025. Note this does not relate to the limited material disclosed pursuant to these requests and thus held at the time of request receipt but rather is concerned with any information produced since initial receipt of each respective FOI Request/Internal Review Request to date. This includes but is not limited to internal DfE e-mails concerning the requests (e.g. emails seeking material held, emails to DfE Minister/Political Members, Chief Officer/Directors relating to any aspect of the requests, discussion relating to what material would be disclosed, information relating to exemptions considered whether applied or not etc), emails relating to any review e.g. questions posed to DfE Officers concerned with initial response together such material as is held relating to DfE engagement with external stakeholders (e.g. Treasury, KWC etc).
Data Tables (12)
| Assess the information | ||
|---|---|---|
| Is it a commercial interest? | Yes, releasing this information would have an effect on the applicant’s commercial trading activity, providing key information to competitors and also could make it challenging to contract commercially for the ‘one school’ project’ | |
| Will disclosure of the information affect a person’s ability to participate competitively in a commercial activity (directly or indirectly)? | ||
| Is it the public authority’s own internal information, which is truly confidential, but s26 (Information Provided in Confidence) cannot be used as the information has not been provided by another person? | No. | |
| Whose commercial interests are affected? | The applicants and to some extent, the Department. | |
| Would there be damage to reputation or business confidence? | I | |
| Is the information commercially sensitive? | Yes. This is the information of a business operating in a competitive market – I believe this to be commercially sensitive. | |
| What are the chances of the prejudice occurring. Would it occur or would be likely to occur? See guidance on applying the prejudice test. Note - Prejudice can be more than financial and can include • Damage to business reputation or the confidence that customers, suppliers or investors have in that business; • detrimental impact on commercial | ||
| The Exemption | |
|---|---|
| Was the information obtained by the public authority from another person (including another public authority)? • A public authority cannot apply this exemption to information that it has generated itself, but the exemption can be applied to confidential information obtained from officers and staff (where relevant). • Note, a contract between a public authority and another person is not “obtained” information. However, | Yes |
| technical or other information contained within a contract could be confidential. • Note that contracts may have the benefit of section 30 (Economy and Commercial Interests). | |
|---|---|
| Would the disclosure of the information to the public constitute an actionable breach of confidence by the person who imparted it? | See below |
| Test of Confidence | |
|---|---|
| There must be an obligation of confidence. A public authority should assess why it believes that the information is confidential and why it thinks that the information has the necessary quality of confidence to justify an obligation of confidence? • If the information is trivial or useless, it is unlikely that confidence will attach to it • if the information is in the public domain, it is unlikely that confidence will attach to it. | There is an inherent understanding that a business which makes an application for financial support, does so on the understanding that the information supplied is managed and stored in a confidential manner and not released to the wider public. As per the Enterprise Act 2008, the Department does publish the names of those business which received financial assistance, and the overall total amount of assistance paid during the year, but the Department does not usually disclose the amounts paid to each individual business as this is considered commercially sensitive. |
| How was the information communicated? Was the information communicated in circumstances that created such an obligation of confidence? | The data was sent via email, some of which was password protected. |
| Would disclosure be an unauthorised use of the information? | Yes. |
| Will there be any detriment suffered by the communicating party if the information is disclosed? | |
| If the first part of this test is satisfied, go on to consider:- | |
| Does a public authority have a defence to a claim for breach on confidence based on the public interest in the disclosure of the information? See below. |
| What are the nature and the circumstances in which the information was obtained? Did the authority expressly agree to keep it confidential? | No formal agreements made e.g. NDA. KWC’s email footer expressly states that the email content and any attachments are strictly confidential. DFE email footer also states that the email message and any files transmitted are confidential, The information was obtained by email, some of the documents, including the financial information, were password protected due to their sensitivity. Password protecting a document assumes confidentiality and that the information contained is of a sensitive / confidential nature. |
| What is the nature of the interest to be protected? Is it necessary to hold information in confidence to protect that interest? | Commercial interest. |
| Is the information personal information/data? | Some of the information provided contains personal information/data. |
| If the information is only provided on the condition that it is kept confidential, how important is the information in relation to the authority’s functions? | DfE – we would not be able to accurately assess applications without sensitive information being provided. Essential for decision making and effective management of public funds. Maintaining confidence and trust of businesses is essential to the Department’s operations. KWC – protection of the company’s commercial interests and proprietary data. A business would have expectations that Government would keep its information secure and confidential and avoid any prejudice to its commercial interests. |
| How much information does the confidentiality attach to? Does the duty only attach to certain information? For example, with regard to anything commercially confidential, it may only attach to information needed to remain confidential in order to protect any competitive position rather than to protect general knowledge of a business organisation or methods. | Financial information and current competitive position and future business plan/strategy. |
| Assessing whether a public interest defence applies |
|---|
| • This is different to the public interest test for qualified exemptions. • If there is a public interest in disclosure of the information, this is a defence to an action for breach of confidence. This means that an action for breach of confidence will fail if the disclosure is in the public interest. • If a public authority decides that a breach of confidence will not be actionable because there is a public interest defence to claim, then it will normally have to disclose that information notwithstanding its confidentiality. • It is rare for a public interest defence to override an obligation of confidence because if |
| the arguments are evenly balanced, the obligation of confidence should remain and not be overridden. • If it does have a public interest defence, a public authority will need to weigh this against the duty of confidence as it may mean that the exemption cannot be applied. | |
|---|---|
| Public interest in maintaining confidentiality | Public interest in disclosure of the information |
| Where a duty of confidence exists there is a general public interest in favour of keeping that confidence. | There is a public interest in ensuring public scrutiny of the activities of public authorities so if disclosure would enhance this scrutiny, this will weigh in favour of disclosure e.g. information revealing misconduct or mismanagement of public funds, information demonstrating that a public contract is not providing value for money, information which would correct untrue statements or misleading acts by an authority. |
| There is no general public interest in the disclosure of confidential information in breach of a duty of confidence. For a specific public interest defence to arise there must be a specific factor in favour of disclosure. | |
| Where the interests of a private person (individual or organisation) are protected by a duty of confidence; the public interest in scrutiny of public authority information is unlikely to override that duty. | |
| Where the confidence arises from a professional relationship. | |
| Disclosure would affect the continued supply of important information (e.g. from whistleblowers). | |
| Disclosure would involve some risk to public administration or public or personal safety. |
| If a public authority is applying this exemption, has it explained and evidenced… | ||
|---|---|---|
| The fact the information has been received from outside a particular public authority? | The information was provided by a private organisation / individuals acting on its behalf | |
| The circumstances in which the information was received? | ||
| Why those circumstances mean that there is an obligation of confidence? | ||
| Details of why and how disclosure of this particular information at the time of the request would cause damage to the person or organisation which had imparted that information? | ||
| Whether there is any evidence that a third party will be harmed by the disclosure? | There has already been some public backlash / negative sentiment directed at the business on social media etc. It is an application that triggers strong oppositional views and creates |
| Further Information |
|---|
| The Information Commissioner has published guidance on the application of this exemption. https://www.inforights.im/media/1161/exempt26a_confidence.pdf |
Full Response Text
1
Freedom of Information Review Investigation Investigatory Interview Notes Investigating Officer – Jane Critchley (JC), Head of Special Projects Interviewee –
18th June 2025, 11am St George’s Court, Douglas 1. JC asked to email all relevant documents following the meeting and this was actioned, and the documents were reviewed by JC. 2. JC asked to check in with KWC and the following emails were provided to JC.
.
2
- explained that confidentiality is extremely important in relation to the wider Financial Support Scheme as it underpins trust and is important to economic growth in terms of attracting businesses and remaining competitive against other jurisdictions.
- Confidentiality and business trust are key factor for consideration in terms of applying the Public Interest Test as this cuts across many elements.
- explained that this rationale applies to many situations but that the Public Interest Test was still applied and considered individually each time on a case-by case basis within the overarching needs of the Financial Assistance Scheme.
- JC and both looked back over the response and ensured that both were content with the Public Interest Test as applied and the redactions as applied, and both were given the need for confidentiality which is core to the success of the Financial Assistance Scheme to protect current and future economic growth.
Notes for considering exemption. - 4587906
Assess the information
Is it a commercial interest?
Yes, releasing this information would have an
effect on the applicant’s commercial trading
activity, providing key information to
competitors and also could make it challenging
to contract commercially for the ‘one school’
project’
Will disclosure of the information affect a
person’s ability to participate competitively
in a commercial activity (directly or
indirectly)?
Is it the public authority’s own internal
information, which is truly confidential, but
s26 (Information Provided in Confidence)
cannot be used as the information has not
been provided by another person?
No.
Whose commercial interests are affected?
The applicants and to some extent, the
Department.
Would there be damage to reputation or
business confidence?
I
Is the information commercially sensitive?
Yes. This is the information of a business
operating in a competitive market – I believe
this to be commercially sensitive.
What are the chances of the prejudice
occurring. Would it occur or would be likely
to occur? See guidance on applying the
prejudice test.
Note - Prejudice can be more than financial and can include • Damage to business reputation or the confidence that customers, suppliers or investors have in that business; • detrimental impact on commercial
revenue or the ability to obtain supplies or secure finance; • a weakening of its position in a competitive environment by revealing market sensitive information or information of potential usefulness to competitors
There is a connection between releasing the requested information and the potential for commercial harm, particularly where the information is not otherwise publicly available.
Freedom of Information Co-ordinator 1st Floor, St Georges Court Upper Church Street, Douglas Isle of Man IM1 1EX
Telephone: (01624 686400) Website: https://www.iomdfenterprise.im/
Our ref: 4842305 12th September 2025
Dear ###
Re: Freedom of Information Act 2015 – Request for Information
I write further to your request, received 31st July 2025, which states:
"I seek such information held by the DfE that was generated as a result of the submission of the following FOI Requests and FOI Internal Review Requests associated with the same:
FOI Request 4587906 (Grant/Loan of Public Money to King William's College) submitted 14th April 2025; and
FOI Request 4648817 (KWC - Due Diligence, Directors' Reports & Financial Statements) submitted 12th May 2025.
Note this does not relate to the limited material disclosed pursuant to these requests and thus held at the time of request receipt but rather is concerned with any information produced since initial receipt of each respective FOI Request/Internal Review Request to date. This includes but is not limited to internal DfE e-mails concerning the requests (e.g. emails seeking material held, emails to DfE Minister/Political Members, Chief Officer/Directors relating to any aspect of the requests, discussion relating to what material would be disclosed, information relating to exemptions considered whether applied or not etc), emails relating to any review e.g. questions posed to DfE Officers concerned with initial response together such material as is held relating to DfE engagement with external stakeholders (e.g. Treasury, KWC etc)."
Our response to your request is as follows:
While our aim is to provide the requested information whenever possible, in this instance most of the information you have requested cannot be disclosed as I have assessed this as falling under Section 35 of the above mentioned Act, Conduct of Public Business.
The information requested that falls outside of a S35 exemption is attached. 2 | P a g e
Application of Section 35 – Conduct of Public Business
I have reviewed the information that has been located in relation to your request for information and after careful consideration I have determined that only certain parts can be disclosed. The bulk of the communications between officers are deemed to fall under Section 35 (b) (i) of the Act. This part of the Act allows a public authority to withhold the release of information it if can demonstrate that disclosure:-
“Would or would be likely to inhibit the free and frank provision of advice.”
In determining this I have concluded that:-
The advice given and arguments presented to justify the application of an exemption and the consideration of your review in the first instance, were done so on the basis that many of those arguments or considerations may or may not be proven or eventually used to form the basis of the justification to exempt that information from release.
If such discussions were made public it would likely dissuade an open and frank exchange between officers in the future and limit the ability of the Department to undertake a properly scrutinised assessment of the information being considered as exempt under the Act. Officers must have the confidence that the advice they provide and views exchanged in the pursuit of a reasoned and informed decision in relation to whether information can be released or withheld, would not be made public. Any advice given or opinions made can easily be misinterpreted or misunderstood if taken at face value and not considered in the correct context, this could lead to opinions being formed by the reader that might be factually incorrect.
Taking the above into consideration I conclude that by releasing information concerning the formulation of the arguments for and against applying the exemptions used for the two cases stated in your request and the deliberations of the officer(s) conducting the review into case 4648817, would inhibit the future free and frank provision of advice.
A section 35 exemption is qualified which means it is subject to a public interest test.
The Act states that a public interest must be something that is of serious concern and
benefit to the public at large. When considering the public interest the following has
been assessed:-
Factors in favour of disclosure
Disclosure may promote increased transparency and provide insight and better understanding of the decision making process and how officers determine whether an exemption should be applied or not and its relevance to the information being sought.
Factors in favour of withholding 3 | P a g e
Disclosure would be likely to inhibit the ability of the Department’s staff and others to express themselves openly, honestly and completely, or to explore extreme options, when providing advice or giving their views as part of the process of deliberation.
Disclosing such information could therefore impair the quality of decision making by the Department.
There is no evidence that this matter is of a serious concern to the public and the response letter to the requester, which is published, provided relevant information about why an exemption was applied and the reasons for applying it.
In taking these factors into account, I have determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing all of the information requested.
Please quote the reference number 4842305 in any future communications.
Your right to request a review
If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.
An electronic version of our complaint form can be found by going to our website at
https://services.gov.im/freedom-of-information/Review . If you would like a paper
version of our complaint form to be sent to you by post, please contact me and I will
be happy to arrange for this. Your review request should explain why you are
dissatisfied with this response, and should be made as soon as practicable. We will
respond as soon as the review has been concluded.
If you are not satisfied with the result of the review, you then have the right to appeal
to the Information Commissioner for a decision on;
1. Whether we have responded to your request for information in accordance with
Part 2 of the Freedom of Information Act 2015; or
2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any
time, attempt to resolve a matter by negotiation, conciliation, mediation or another
form of alternative dispute resolution and will have regard to any outcome of this in
making any subsequent decision.
More detailed information on your right to a review can be found on the Information
Commissioner’s website at www.inforights.im.
Should you have any queries concerning this letter, please do not hesitate to contact
me.
Further information about freedom of information requests can be found at
www.gov.im/foi.
4 | P a g e
I will now close your request as of this date.
,
Freedom of Information Co-ordinator
Section 26 Information provided in confidence
201708
v.1
Section 26 – Information provided in confidence
Introduction
This document is drafted as practical guidance to assist public authorities in applying the
section 26 absolute exemption for information provided in confidence. It is not intended to
be a comprehensive assessment of the law in this area and a public authority is required to
assess each request on the basis of its own individual facts.
A public authority can only rely on the exemption if the information falls within it. There is
no prejudice test or public interest test.
A public authority should consider whether other exemptions, in addition to this one, may
also apply to the requested information, bearing in mind that other exemptions might be
more appropriate (see other exemptions guidance). Different exemptions may apply to
different aspects of the requested information, although only one exemption needs to be
engaged for information to be withheld.
A public authority may also need to consider whether to neither confirm nor deny that the
information is held, if to do so would, in itself, be absolutely exempt under this section.1
Assess whether the exemption applies in any respect:-
• A public authority should be wary of documents labelled as confidential or with some
other marking. They may not meet the test of being provided by someone else or it may
be the case that information that was once confidential is not any more due to the
passage of time.
• If a request is made for confidential information a public authority may consider
discussing with the person who provided the information if it is still confidential. However,
note that there is no extension to the 20 day standard processing period to enable a
public authority to do this.
The Exemption
Was the information obtained by the public
authority from another person (including
another public authority)?
• A public authority cannot apply this
exemption to information that it has
generated itself, but the exemption can
be applied to confidential information
obtained from officers and staff (where
relevant).
• Note, a contract between a public
authority and another person is not
“obtained” information. However,
Yes
1 s19 of the Act and further guidance on NCND
Section 26 Information provided in confidence
201708
v.1
technical or other information contained
within a contract could be confidential.
• Note that contracts may have the benefit
of section 30 (Economy and Commercial
Interests).
Would the disclosure of the information to
the public constitute an actionable breach of
confidence by the person who imparted it?
See below
Test of Confidence
There must be an obligation of
confidence.
A public authority should assess why it
believes that the information is confidential
and why it thinks that the information has
the necessary quality of confidence to justify
an obligation of confidence?
• If the information is trivial or useless, it is
unlikely that confidence will attach to it
• if the information is in the public domain,
it is unlikely that confidence will attach to
it.
There is an inherent understanding that a
business which makes an application for
financial support, does so on the
understanding that the information supplied is
managed and stored in a confidential manner
and not released to the wider public. As per
the Enterprise Act 2008, the Department does
publish the names of those business which
received financial assistance, and the overall
total amount of assistance paid during the
year, but the Department does not usually
disclose the amounts paid to each individual
business as this is considered commercially
sensitive.
How was the information communicated?
Was the information communicated in
circumstances that created such an
obligation of confidence?
The data was sent via email, some of which
was password protected.
Would disclosure be an unauthorised use of
the information?
Yes.
Will there be any detriment suffered by the
communicating party if the information
[Response truncated — full text is 22,436 characters]