The Upper Tribunal (Administrative Appeals Chamber) has partly allowed an appeal by UK Research and Innovation against a First-tier Tribunal decision ordering disclosure of information from mid-term reviews of university-run Centres for Doctoral Training, upholding disclosure of review scores and feedback under section 36 of the Freedom of Information Act 2000 but finding the First-tier Tribunal materially misapplied the law of confidence under section 41.
In United Kingdom Research and Innovation v Information Commissioner and Kirkham [2026] UKUT 146 (AAC), Upper Tribunal Judge Church considered two linked requests made by Dr Reuben Kirkham in August 2017 and May 2018 to the Engineering and Physical Sciences Research Council and its successor UKRI, seeking scores, feedback, submissions and case studies arising from the mid-term review of Centres for Doctoral Training, four-year structured PhD programmes funded with public money, often in collaboration with industry. The First-tier Tribunal had allowed Kirkham's appeals in March 2024 and ordered disclosure of all remaining material, subject to redaction of personal information.
The Upper Tribunal first rejected Kirkham's argument that the requests should have been handled under the Environmental Information Regulations 2004 rather than FOIA. Although the second request was expressly framed under the EIR on the basis that the CDTs were funded under environmental priority areas including energy storage, nuclear, solar and water, the judge held, applying the Court of Appeal's approach in Henney, that the "measure" the information was on was the assessment and performance management of the CDTs, not the underlying research. That administrative evaluation lacked the requisite environmental impact, and FOIA applied.
On the first request, the Upper Tribunal dismissed UKRI's appeal against the order to disclose scores and feedback. UKRI had relied on a section 36 opinion from EPSRC's then chief executive Professor Nelson, which consisted of a single sentence - "I am sure that we should apply Section 36 to this case". Judge Church held that the First-tier Tribunal was not required to accord the qualified person's opinion deference, only appropriate consideration, and given the opinion was extremely brief and wholly lacking in explanation, the tribunal was entitled to give it very little weight before conducting its own public interest balance in favour of transparency.
The judge agreed with Kirkham's characteristically blunt submission that the opinion "was given as much weight and consideration as it deserved", observing that the time for UKRI to make a stronger case on prejudice was before the First-tier Tribunal and that "these horses have long since bolted". Any information ordered disclosed in that appeal that remains withheld must now be disclosed.
On the second request, however, the Upper Tribunal found the First-tier Tribunal made three material errors of law in its section 41 analysis. It failed properly to apply the tests in Coco v A N Clark (Engineers) Ltd; it wrongly assessed confidentiality by asking whether UKRI regarded the information as confidential, when the question is whether the information was imparted in an expectation of confidence and whether its preservation was of substantial concern to the confiding party; and it treated section 41 as if it were a qualified exemption requiring a section 2(2)(b) balancing exercise.
Section 41 is an absolute exemption, defeated only where the public interest in disclosure is sufficient to defeat an otherwise actionable breach of confidence — a defence the courts have confined within strict limits, requiring an exceptional case per London Regional Transport v Mayor of London. The decision on the second request was set aside and remitted to a freshly constituted First-tier Tribunal panel.
The judgment also dismissed a series of additional arguments advanced by Kirkham, including that UKRI was estopped from relying on section 36 for the first request because it later abandoned the exemption for the second. Applying Ingle v Information Commissioner, the judge held that estoppel as a common law doctrine must give way to the statutory scheme, and that a public authority which has relied on one exemption may invoke additional or alternative exemptions later, whether in the same or separate proceedings.
Arguments that no actionable breach of confidence can arise between two FOIA public authorities, and that the requested material was UKRI's "own information", were also rejected, the judge confirming that the Marcel principle means information obtained under statutory powers is generally received subject to a duty of confidence unless statute expressly provides otherwise.
