S.43 exemption hits the buffers

A silverlink train

Another attempt by a public body to keep information secret with the use of the S.43 (Commercial Interests) exemption has failed.

The Department for Transport’s (DfT) efforts to withhold the information relating to how much it paid a rail company when its workforce went on strike was rejected by the Information Commissioner.

It was ruled that S.43 was not engaged and so the Commissioner did not even go on to consider the public interest arguments in the case.

The case centred on an industrial dispute by workers on the Silverlink rail franchise in 2007 which ran between London Euston and Northampton.

Officials from the DfT confirmed to the Commissioner that under a section of its agreement with Silverlink it was able to “reimburse or ameliorate net losses of the Franchise Operator arising from industrial action”.

However, it refused to divulge how much this compensation was and the arguments it put up in defence of the use of S.43 remain somewhat of a mystery.

The DfT said that to disclose it arguments for the support of S.43 would be a breach of the exemption in itself. The decision notice said: “The DfT has provided the Commissioner with submissions to support its use of the exemption, but has stated that it believes that these submissions cannot be put into the public domain.”

So the rationale behind the DfT’s use of the exemption is in a confidential annex to the decision notice that we cannot see.

However, the Commissioner gave the arguments – secret or not – short shrift and said the exemption did not apply. Because the exemption didn’t apply he also found the DfT guilty of a breach of procedure in that it should have explained the reasoning behind its application of S.43 to the applicant.

The DfT has now been ordered to provide the applicant with information relating to did the DfT provide funding to Silverlink as compensation when the industrial action took place and if any changes were made with the incoming franchisee to compensate it for any losses caused by industrial action.

The full decision notice can be seen here. [link]

NOTE: For S.43 to be applicable the prejudice to an organisation has to be likely and substantial. Even then the public interest can weigh in favour of disclosure. It means that it practice it is very difficult to shield information using this exemption. The Ministry of Justice lost a similar case [Working on the chain gang], and the Royal Mail has withdrawn its appeal to the Information Tribunal over its attempt to keep secret how much it spends on management consultants.