The First-tier Tribunal has upheld an Information Commissioner's Office (ICO) decision that Ofcom was entitled to rely on section 44 of the Freedom of Information Act 2000 (FOIA) to withhold information about its engagement with major technology companies during the development of its Illegal Content Codes of Practice.
The Tribunal dismissed the appeal brought by campaigner David Babbs (David Babbs v The Information Commissioner & Anor [2026] UKFTT 389 (GRC)), confirming Decision Notice IC-403651-J1L1.
Babbs, lead consultant for campaign group Clean Up the Internet, had sought details of Ofcom’s meetings with Meta, X/Twitter, Google/YouTube and TikTok from November 2023 onwards, arguing the information was needed to understand how industry lobbying may have shaped Ofcom’s approach to online harms under the Online Safety Act 2023. Ofcom disclosed some documents but withheld others under sections 44(1) and 44(2) FOIA, relying on the statutory confidentiality regime contained in section 393 of the Communications Act 2003.
Ahead of the remote hearing, the Tribunal granted the Movement for the Open Web (MOW) interested-party status, enabling it to provide written submissions in support of a narrower interpretation of section 393. Neither the appellant, the ICO nor Ofcom objected.
The appeal turned on whether section 393 prohibits disclosure only of information obtained by Ofcom through the exercise of compulsory powers, or whether it extends to information provided voluntarily by regulated businesses.
Babbs argued that Parliament intended the provision to apply narrowly, protecting only businesses compelled to disclose information. Ofcom maintained that section 393 applies broadly to all information obtained in exercise of a power, including information supplied voluntarily during regulatory engagement. MOW also supported a narrow reading, limited to commercially sensitive information.
The Tribunal rejected both the appellant’s and MOW’s restrictive interpretations:
- It found no basis for limiting section 393 to information obtained under compulsory information-gathering powers.
- It accepted Ofcom’s submission that distinguishing between compulsory and voluntary provision would undermine the statutory scheme and create inconsistency in the criminal offence for unlawful disclosure under section 393(10).
- It held that section 393 applies whenever information is obtained while Ofcom is in exercise of a power, including where information is generated through regulatory engagement and where Ofcom records information supplied by third parties.
The Tribunal also dismissed reliance on the Communications Act Explanatory Notes, finding they could not override or narrow the statute’s plain wording.
Because disclosure of the information would constitute a criminal offence under section 393, Ofcom was required to rely on section 44(1) FOIA, an absolute exemption. The Tribunal reiterated that public interest arguments advanced by Babbs and MOW, based on the importance of transparency in online safety regulation, could not be imported into section 44.
The Tribunal further held that section 44(2) FOIA was engaged. Confirming or denying whether Ofcom held information about meetings with particular companies would itself reveal whether those businesses had been subject to Ofcom’s regulatory powers, which is information protected by section 393.
The Tribunal concluded that Ofcom had correctly applied both section 44(1) and 44(2) FOIA, section 393 of the Communications Act 2003 prohibited disclosure of the withheld material, and the ICO’s decision notice was lawful and should be upheld. The appeal was therefore dismissed.
