The First‑tier Tribunal has dismissed an appeal by investigative journalist Robert Fortner, who sought to compel UK Research and Innovation (UKRI to release hundreds of emails relating to research‑integrity issues at Imperial College London, including correspondence potentially connected to a study of a new polio vaccine.
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s.41 FOIA and the Coco Test Section 41 of the Freedom of Information Act 2000 provides an absolute exemption for information obtained from a third party where disclosure would amount to an actionable breach of confidence. Because it is absolute, no public‑interest test under FOIA applies but the common‑law action for breach of confidence does contain its own public‑interest defence. The Tribunal in Fortner v ICO & UKRI applied the orthodox approach, relying on the classic three‑stage test from Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41. What s.41(1) FOIA requires This is where the Coco test comes in. In the Tribunal’s words, the withheld UKRI email chain “was provided to UKRI with the expectation that it would be treated confidentially” and concerned “sensitive matters concerning research integrity”. The Coco Test: Three Questions The Tribunal noted that the material was “more than trivial and not otherwise accessible to the public”. 2. The information was imparted in circumstances importing an obligation of confidence. This can be: UKRI’s own policy states that “all those involved in the process are required to maintain confidentiality”, which the Tribunal treated as strong evidence of an implied obligation. 3. Disclosure would cause detriment to the confider The Tribunal accepted that disclosure “would negatively affect individuals by impacting the personal lives and careers of the individuals involved”. Public‑interest considerations However, the Tribunal emphasised the countervailing systemic risk: Disclosure could have “a direct and clearly negative impact on the confider” and undermine UKRI’s reporting system for research‑integrity concerns. This broader chilling effect was decisive. Why this mattered in the Fortner case As a result, s.41(1) was engaged and the appeal was dismissed. |
In Fortner v Information Commissioner & UKRI [2026] UKFTT 276 (GRC), heard in October 2025 but handed down on 26th February 2026, the Tribunal upheld the Information Commissioner’s decision notice published in March 2025 that UKRI, the UK's national scientific funding agency, had acted lawfully in withholding the majority of the material.
Fortner, a journalist who has written extensively for The BMJ publication on polio, submitted a three‑part FOIA request in June 2024 seeking:
- Emails sent by Dr Ivan Pavlov, Head of Preclinical Good Research Practice Policy at the Medical Research Council.
- All correspondence between UKRI and Imperial College “regarding research integrity”.
- Research‑integrity statistics provided by Imperial.
UKRI initially warned that the request risked breaching the section 12 cost limit (allows public authorities to refuse a request where it is estimated that the cost of complying would exceed a set limit), prompting Fortner to narrow the timeframe. Even after refinement, keyword searches returned 205 emails for part two of the request. Fortner argued that all 205 should be disclosed because they matched his search terms.
The Tribunal rejected that argument, siding with UKRI and the ICO that the request had to be interpreted "in context", not by literal keyword matching.
The panel held that the phrase “regarding research integrity” required a "substantive connection" to research‑integrity issues, not merely the appearance of the words in boilerplate grant documentation.
The judgment noted that many emails were “false positives”, including routine grant‑application correspondence where “research integrity” appeared only in standard terms and conditions. After manual review and removal of duplicates, only two email chains fell within scope, one of which was disclosed.
The Tribunal concluded that the request was expressly for correspondence regarding research integrity, not communications in which the term appeared incidentally, tangentially, or in unrelated contexts. Ground 2 of the appeal was therefore dismissed.
The remaining disputed material was a single email chain withheld under section 41(1) (information provided in confidence) and section 40 (personal data).
After reviewing the chain in a closed session, the Tribunal agreed that disclosure would constitute an "actionable breach of confidence" under the Coco v Clark test (see sidebar, right). The information was supplied by a third party, was plainly confidential, and disclosure would cause detriment.
The panel emphasised the wider public interest in maintaining trust in UKRI’s confidential reporting channels: “A situation where individuals… were unwilling to share legitimate concerns about research integrity with UKRI for fear of sensitive information being disclosed is clearly counter to the public interest.”
The Tribunal also confirmed- via a formal “gist” shared with Fortner - that the withheld material "did not relate" to the Imperial nOPV2 vaccine study, addressing one of his concerns.
Finally, UKRI had already disclosed the previously withheld emails relating to Dr Pavlov, rendering that ground of appeal academic. The Tribunal declined to rule on Fortner’s request for a finding of improper withholding, calling it “a waste of the Tribunal’s time and resources” given that he already possessed the material.
The Tribunal dismissed all grounds of appeal. It found:
- UKRI conducted a "reasonable and proportionate search".
- Only two email chains fell within scope; one was properly withheld.
- Confidentiality and personal‑data exemptions were correctly applied.
- No overriding public interest justified disclosure.
