Freedom of Information Act 2000 (FOIA) Decision notice Date: 23 February 2017 Public Authority: Companies House 1 Address: Crown Way Cardiff Way Cardiff CF14 3UZ Decision (including any steps ordered) 1. The complainant submitted a request to the public authority for details of an objection to an application for the dissolution of a company. The public authority withheld this information on the basis of the exemptions contained at sections 41(1) and 40(2) of the FOIA. 2. The Commissioner s decision is that the public authority was entitled to rely on the exemption at section 41(1). 3. No steps are required. 1 Companies House is not a public authority for the purposes of the FOIA. However, it is an executive agency of the Department for Business, Energy and Industrial Strategy, a designated public authority under the FOIA. Therefore, the Department is actually the public authority in this case. However, for the sake of clarity, this decision notice refers to Companies House as if it were the public authority. 1
Request and response 4. The complainant initially wrote to the public authority on 4 August 2016 in the following terms: The 1Click Charitable Trust Trading Limited 09243765.. As a Director of the parent company and former director of the above company please can you provide copies of the two objctions [sic] that have been received in respect of the application to wind up the above company. 5. A following response was issued by the public authority outside of the FOIA on 9 August 2016: The Registrar has received an objection to the dissolution of the above company from HM Revenue & Customs (HMRC) This objection, unless withdrawn by HMRC will stay in place until 03 November 2016, if no further objections are received, dissolution action will resume after this date. Unfortunately we do not know which department within HMRC has objected..please note that we can only withdraw the objection if notified by the HMRC that they no longer wish to object to the company being removed from the register. There is also a 3rd party objection in place. I have contacted the objector to ask for permission to divulge their identity.. 6. The complainant wrote back to the public authority on the same day in the following terms: Irrelevant of the identity of the 3rd party objector, what is the position regarding the objection? When does it lapse or can that be renewed in perpetuity? 7. A further response was issued by the public authority outside of the FOIA on 11 August 2016 in the following terms: The above company is suspended until 3rd November 2016 from objections being made. As long as the objector provides us with up to date and sufficient evidence each time they can make more than one objection. 2
8. The complainant wrote back to the authority on the same day in the following terms: Please provide copies of the sufficient evidence from both Revenue and Customs and the third party that justifies delaying the winding up for another 4 months. 9. The above request was forwarded by the authority s Dissolution Support Team to its Information Rights Team who dealt with it under the terms of the FOIA. On 22 August 2016 the Team explained that it did not hold any information with regard to the objections submitted by HMRC. This is because HMRC simply provides the authority with a list of companies to which it objects to their dissolution, no further information is provided in support. 10. The public authority advised that the third party objection (ie the objection submitted by a party other than HMRC) had elapsed. It explained that if the third party did not object again and no other objection was received, the dissolution of the company would resume when the objection by HMRC expired. It asked the complainant to confirm whether he still wished to pursue the request for evidence provided by the third party in view of the information he had now received regarding that objection. 11. The complainant wrote back on the same day in the following terms:.i would like to see 1. The additional compelling evidence provided by HMRC for an extension of the suspension of the striking off. I suggest a blanket list is hardly sufficient evidence for the Registrar to agree to an extension of the suspension. 2. Even though it has lapsed please provide a copy of the third party objection. 12. The public authority wrote back to the complainant on 23 August 2016. It explained that the Information Rights Team would not be able to address his concern regarding the objection by HMRC and that this would be dealt with by the Dissolution Support Team. It however reiterated that it did not hold evidence provided by HMRC in support of its objection to the dissolution of the company for reasons which had been explained in the authority s previous response. 13. In terms of the request for evidence submitted in support of the third party objection, the public authority explained that it considered the information held exempt on the basis of sections 40(2) and 41(1) of the FOIA. 3
14. The complainant wrote back to the public authority on the same day requesting an internal review. He specifically disagreed with the decision to withhold evidence submitted by the third party including their identity. 15. On 19 September 2016 the public authority wrote to the complainant with details of the outcome of its internal review. It upheld the original decision to withhold the information held within the scope of the request on the basis of the exemptions contained at sections 40(2) and 41(1). Scope of the case 16. The complainant subsequently contacted the Commissioner on 22 September 2016 in order to complain about the public authority s handling of his request. He explained that he disagrees with the decision to withhold the identity of the third party and the evidence they have provided to the public authority in support of their objection to the dissolution of the company in question. Reasons for decision Background 17. The public authority is primarily a register of corporate information. It incorporates and dissolves limited companies, registers the information companies are legally required to supply, and makes that information available to the public. However, not all information held by the authority appears on the public register. 18. The public authority explained that subject to meeting the criteria set out in section 1000 of the Companies Act 2006, any company may apply to have their company struck off the register (using form DS01). The result of such an application is that the company s name is struck off the register of companies and the company is dissolved. Before applying for a strike off, a company must advise anyone likely to be affected by the removal of the company from the register, such as creditors, members and any other interested parties, such as HMRC, as appropriate. Within 7 days of filing a form DS01 with the authority, the directors making the application must send a copy of the form to various interested parties. In accordance with the Companies Act 2006, the public authority publishes details of the company s intention to be stuck off the register in the relevant Gazette. Two months later, unless cause is shown to the contrary, the company is struck off and dissolved. 4
19. Any interested party can object to the striking off of a company and objections must be made in writing and supporting evidence must be provided. Creditors of the company must provide recent evidence dated within the last 6 months which demonstrates their reason for objection. Where a company has voluntarily applied for strike off, an objection suspends the strike off action for a period of three months. At the expiration of that objection, it may be renewed at which point further evidence would need to be provided to maintain the objection. 20. The public record shows that an objection has been received but does not specify who the objector is, or the nature of their objection. The public authority seeks permission from any objector to disclose their identity if asked by the relevant company. However, even if permission is given, this information would only be disclosed to the company and not to a third party. 21. In response to a request for consent to disclose their identity, the third party objector advised the public authority that they did not wish for their identity to be revealed. Section 41(1) 22. The Commissioner has first considered whether the public authority was entitled to conclude that the withheld information is exempt on the basis of this exemption. 23. Section 41(1) states: Information is exempt information if- (a) (b) it was obtained by the public authority from another person (including another public authority), and 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. As can be seen from the wording of the exemption, the first issue the Commissioner has to consider in order to determine whether the exemption was correctly engaged is whether the evidence provided by the third party in support of their objection (ie the withheld information), was obtained by the public authority from another person. The Commissioner is satisfied that the first criterion has been met because the information was clearly provided by the third party to the authority. 25. In order to determine whether the second criterion in section 41(1)(b) has been met, the Commissioner must consider whether the disclosure 5
of the withheld information would constitute an actionable breach of confidence. 26. Relying on the test set out by the High Court in Coco v A N Clark (Engineers) Limited 2, the Commissioner considers that there are three elements usually required to bring an action for a breach of confidence. They are as follows: The information must have the necessary quality of confidence. It must have been imparted in circumstances importing an obligation of confidence. There must have been an unauthorised use of the information to the detriment of the confider. 3 27. The Commissioner has considered these three elements in the circumstances of this case. 28. She is satisfied that the supporting evidence provided by the third party to the public authority in relation to their objection to the dissolution of the company is more than trivial and is not publicly accessible. She has therefore concluded that the information possesses the necessary quality of confidence. 29. The Commissioner has also concluded that in the circumstances, the withheld information was clearly provided to the public authority by the third party in the expectation that it would be held in confidence. This expectation was born out of prior knowledge of how the public authority routinely handles the identity of objectors and the supporting evidence that they provide. Their expectation would have also been strengthened following their explicit denial of consent for their identity to be revealed to the company in question. 30. Finally, the Commissioner is satisfied that disclosure of the withheld information under the FOIA would constitute an unauthorised use. Although she is not required to establish detriment to the confider in the circumstances of this case, the Commissioner is also satisfied that such 2 [1968] FSR 415 3 However, establishing a detriment to the confider will not always be required in order to determine whether a breach of confidence would be actionable. Case law also suggests that an invasion of privacy resulting from a disclosure of private and personal information can be viewed as a form of detriment in its own right. 6
an unauthorised use of the withheld information would constitute an invasion of the third party s privacy, and that could be viewed as a detriment in its own right. Would the public authority have a public interest defence for the breach of confidence? 31. Section 41 is an absolute exemption so there is no requirement to carry out a public interest test pursuant to section 2(2)(b) of the FOIA. However, case law on the common law of confidence suggests that a breach of confidence won t succeed, and therefore won t be actionable, in circumstances where a public authority can rely on a public interest defence. The test therefore is whether there is a public interest in disclosure which overrides the competing public interest in maintaining the duty of confidence. 32. Some of the submissions the public authority has provided to the Commissioner in support of the application of this exemption cannot be revealed in this notice because to do otherwise would result in the identification of the third party. 33. While the Commissioner acknowledges that there will always be a public interest in openness and transparency, she does not consider that there is a wider public interest in disclosing the withheld information. On the other hand, she considers that the public interest in maintaining the duty of confidence is significant in the circumstances of this case. 34. For that reason, she has concluded that the public authority would not be able to successfully rely on a public interest defence for breaching the duty of confidence it owes to the third party objector. 35. The Commissioner has therefore concluded that the public authority was entitled to rely on the exemption at section 41(1)(a). 36. In view of her decision, she has not considered the applicability of the exemption at section 40(2). 7
Right of appeal 37. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: 0300 1234504 Fax: 0870 739 5836 Email: GRC@hmcts.gsi.gov.uk Website: www.justice.gov.uk/tribunals/general-regulatorychamber 38. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 39. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent. Signed Terna Waya Senior Case Officer Information Commissioner s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF 8