George Greenwood v The Information Commissioner & Anor

Introduction

1. This appeal is brought by George Greenwood, a journalist for the Times Newspaper. It concerns a request for information from the Department for Levelling Up, Housing and Communities (“the DLUHC”) relating to loan guarantees. The DLUHC withheld the information under section 43(2) FOIA 2000 (Commercial sensitivity).

2. In a decision dated 18 January 2024, the ICO concluded that the DLUHC was entitled to rely upon section 43(2) to withhold the information.

3. The Appellant, appealed against the Commissioner’s decision notice (the ‘DN’) IC-246895-Q6N1 of 18 January 2024.

4. The parties opted for paper determination of the appeal. The Tribunal is satisfied it can properly determine the issues without a hearing within rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (as amended). Request

5. On 16 March 2023, the Appellant wrote to the DLUHC and requested the following information: ‘ Please provide a list of the current outstanding loan guarantees granted by the department under the following programmes managed by Homes England as of the date of this request, Investment: Long Term Fund Short Term Fund Build to Rent Estate Regeneration Legacy PRS Guarantees Levelling UP Home Build Fund Brownfield, Infrastructure and Land fund Development: Public Sector Land City Growth Deals Land Assembly Fund/Starter Homes Direct Commissioning First Homes For each guarantee, please state: - The date for guarantee was issued. - The company or entity the guarantee was given to. - The size of the financial guarantee issued (which I’m happy to receive in a banded form if necessary). - The scheme under which the guarantee was offered. - The project the guarantee was issued in relation to”. Response

6. The DLUHC responded on 14 June 2023. It maintained that it was withholding the information on the basis that: ‘This information is exempt under section 43(2) of the FOI Act as disclosing it would be likely to harm commercial interests. Information falling within the section 43(2) exemption must still be provided unless it is not in the public interest to do so. There will always be some general public interest in the disclosure of internal government information in order to promote transparency and accountability of public authorities. The Department recognises that this allows for the scrutiny of government policy and decision-making processes, in particular with regards to increasing public understanding of how t he housing guarantee schemes support the building of new homes for the private rented sector. However, this information was submitted in expectation of accepted market standards of confidentiality and if it were disclosed would be likely harm [sic] the lender’s commercial interests and the ongoing success of the scheme, as well as future government guarantee schemes. Furthermore, future borrowers may avoid using the scheme for fear that their legitimate commercial interests might be adversely impacted by disclosure of details of their debt. We have therefore decided that, on balance, it is not in the public interest to disclose this information at this time’.

7. On 21 June 2023, the Appellant requested an internal review.

8. The DLUHC upheld its position on Internal Review, in a decision dated 21 July 2023.

9. The Appellant referred the case to the Commissioner on the same date.

10. In a letter dated 18 October 2023, the DLUHC responded to the ICO. In that letter they relied upon 2 emails (dated 10 October 2023 and 30 May 2023) from the ‘affected external party’ at Annexes D & E. We do not set these out here, but note that we have had significant regard to the content of these emails and address them further below. The ICO’s Decision Notice

11. In a decision notice dated 18 January 2024, the ICO made the following findings: ‘8.The DLUHC has explained to the Commissioner that the withheld information relates to the ‘Private Rented Sector Guarantee Scheme’. The DLUHC has clarified that this is the only scheme listed (in the request) which provides loan guarantees.

9. The withheld information represents the identities of borrowers who have received loan guarantees, and the project that they are involved in.

10. The DLUHC has explained to the Commissioner that it considers disclosure of the information could prejudice the commercial interests of ARA Venn. ARA Venn manage PRS Operations Ltd., which is the ‘special purpose vehicle’ through which the scheme is delivered. The DLUHC has further explained to the Commissioner that disclosure would also prejudice the commercial interests of the borrowers (using the scheme), and further, the lender and bond investors who fund the loans.

11. The DLUHC has explained that ARA Venn has provided submissions to it explaining its view that prejudice ‘would be likely’ to cause the claimed prejudice for each of the three groups (namely ARA Venn, the borrowers, and lender and bond investors). The DLUHC has provided a copy of these submissions.

12. In respect of the prejudice to the commercial interests of ARA Venn, it has argued that: has argued that: · “ARA Venn, a commercial business, was hired via public procurement to run the PRS Scheme as a commercial lender. It bore all of the scheme set-up costs and bears all the operational risks.” risks.” · “Whilst of course ARA Venn accepted that certain details of the scheme would be likely to subject to the FOIA (as acknowledged in the PRS licence […]), if the details of borrowers financing terms were unexpectedly disclosed in the public domain it would likely impact the future demand for loans under the scheme and therefore have a commercial impact on ARA Venn.” fore have a commercial impact on ARA Venn.” · “The disclosure would also likely have a broader negative reputational impact for ARA Venn’s business.”

13. The Commissioner understands that [sic] main concern held by ARA Venn is that disclosure of the information would reveal information about the debts and financing terms relating to the borrowers. Borrowers expect market standards of confidentiality in respect of their debts and financing terms; should ARA Venn not be able to provide market standards of confidentiality it will damage its ability to attract borrowers with the success that it currently is.

14. The Commissioner has considered the DLUHC’s position, and the withheld information. Having done so, he accepts that the information relates to the commercial activity of ARA Venn. The Commissioner also accepts that the disclosure of the information would be likely to prejudice ARA Venn’s commercial interests for the reasons given above. The Commissioner has therefore concluded that section 43(2) is engaged and must go on to consider the public interest test…. engaged and must go on to consider the public interest test.

19. The Commissioner has considered the arguments provided by both parties….

21. The Commissioner notes that there is a strong public interest in ensuring transparency around the way that ARA Venn is delivering the scheme. This promotes accountability and helps the public to understand how the scheme is being delivered.

22. However, this needs to be balanced against the public interest in ensuring that ARA Venn is able to attract borrowers and implement the scheme, without undue prejudice to its interests. This prejudice would be likely to negatively impact the scheme, and therefore the building of private rental housing. There is a significant public interest that the success of the scheme is not damaged in such a way.

23. The Commissioner also understands that related information, being the value of the guaranteed loans, is also subject to transparency through the public accounts available on Companies House. The Commissioner perceives that this information, which reveals the value of the loans guaranteed by the schemes, already addresses some the public interest in this case.

24. In these circumstances, the Commissioner considers that the weight of the public interest rests on ensuring that ARA Venn is not subject to the above prejudice.

25. The Commissioner’s decision is therefore that the DLUHC was correct to apply section 43(2) to withhold the information from disclosure’. The Grounds of Appeal

12. The Appellant appealed the decision on the following grounds: ‘15. I appeal this decision notice on the grounds that the Commissioner failed to adequately consider the significant public interest in transparency, especially concerning the propriety concerns raised in the context of some of the loan guarantees issued.

16. The Commissioner does not seem to have interrogated why disclosure would be greatly prejudicial to the DLUHC, the loan scheme administrator Venn, or the loan recipients.

17. Venn argues that “the details of the financing terms” if unexpectedly disclosed, would impact the scheme, and cause reputation damage to Venn.

18. Those accepting these loans know that they are accepting a taxpayer backed product, and cannot claim not to understand this will come with an added degree of scrutiny.

19. As set out in point 12 of the DN, Venn’s license makes the fact it may have to disclose information under FOIA abundantly clear. It is hard to see how Venn lawfully cooperating with FOIA requests would in any way prejudice Venn’s reputation, where the public interest favours disclosure.

20. A key part of the Commissioner’s position is accepting the assertion by the department that borrowers expect “market standards” of confidentially about their borrowings.

21. However, he has not interrogated whether this is a reasonable expectation of borrowers to have, which I would argue, does not hold up to scrutiny. Understandably, taxpayers will want to know where their money has gone, and it is widely accepted that such transactions can expect a higher degree of scrutiny. Ultimately this matter is up to regulators, not Venn, so it cannot reasonably guarantee market standards due to the applicability of FOIA.

22. The harms that are imagined to occur from disclosure are also remote. The Commissioner notes the concerns about the release of “financing terms” at point 12. But my request is solely for the totals guaranteed, not on what interest rates each individual loan might be repaid, so detailed financing terms would not be disclosed.

23. Most companies above a certain size must already disclose the amount they have taken loans in their annual accounts anyway, so it is hard to see how this disclosure would be unduly prejudicial, so knowing part of this was government backed does little to provide information that could undermine their commercial position.

24. It is also hard to see how market participants would think less of a company just knowing it had participated in a government-backed loan scheme, especially when the intentions of that scheme are to boost housing numbers, not for example, to rescue poorly performing companies.

25. Some companies also openly advertise their government funding, strongly suggesting they have no great reputational or commercial concerns about transparency about their taxpayer funding. However, as this information is hard to collate, will not be complete, and that those with more to hide are less likely to be open, there remains a strong case for release under FOIA.

26. The Commissioner argues that the disclosure of anonymised size and dates of loans in the accounts of the Venn-controlled company that administers the scheme goes some way to meet the public interest in transparency.

27. That information would not allow conflicts between companies and the government to be explored, for the reasons set out in the factual and procedural background. This is useful only in as much as it provides transparency on the total amount guaranteed, but does not meaningfully assist the public interest in transparency or accountability. The value of this is therefore highly limited, and should not factor against the public interest in transparency.

28. DLUHC’s remaining arguments are generic, and do not sufficiently engage with the specific and compelling public interests in transparency, accountability, and the prevention of misuse of public funds’. The ICO’s response

13. The ICO resisted the appeal, relying on his Response dated 13 th March 2024.

14. In summary the ICO continued to rely on the DN. He re-iterated that: (a) The section 43(2) exemption is engaged. a. The ICO’s case was that disclosure “ would be likely to ” prejudice commercial interests. Emphasising that this test does not require the relevant prejudice to be more likely than not to occur if the information is disclosed. Rather, it must be shown that there is a “ real and significant risk ” of prejudice to the relevant commercial interests. b. It came to this conclusion on the basis that disclosure of the withheld information would reveal information about the debts and financing terms relating to the borrowers, who expect market standards of confidentiality. The Commissioner accepted that, if ARA Venn is not able to provide market standards of confidentiality to borrowers, there was a real and significant risk that its ability to attract borrowers to participate in the PRSGS will be prejudiced. c. ‘ As is inevitable in all cases of this nature, the fact that the withheld information has not yet been disclosed means that there is no real-world data demonstrating whether or not the potential prejudice would in fact occur if the withheld information were disclosed. Nonetheless, the Commissioner is satisfied on the basis of the information provided by DLUHC and ARA Venn, that that there is a “ real and significant ” risk of the relevant prejudice to ARA Venn’s commercial interests (and/or to the commercial interests of borrowers)’. d. The Appellant’ s suggestion that disclosure would not be “ greatly ” prejudicial (§16, Grounds of Appeal) appears to be tacit acceptance that there is a real risk of at least some prejudice to the relevant commercial interests, which is sufficient for the purposes of this stage of the test. (b) The public interest favours maintaining the exemption a. The Commissioner maintains and relies on the analysis in relation to the public interest test set out in the Decision Notice. It briefly addresses what it submits are Mr Greenwood’s main arguments: as follows. b. Mr Greenwood argues that borrowers cannot reasonably expect market standards of confidentiality when participating in a government-backed scheme. There are two answers to this: (i) Mr Greenwood’s argument proceeds on the basis that borrowers are in receipt of public funds (see §21 “ taxpayers will want to know [sic] where their money has gone ”). However, that is a false premise. Loans are granted to borrowers by ARA Venn using funds raised in the capital markets; they are not taxpayer funded. Venn using funds raised in the capital markets; they are not taxpayer funded. (ii) In any event, there is a strong public interest in the PRSGS being successful and leading to additional private rental housing being built. As such, it would be contrary to the public interest for borrowers to decide not to participate in the PRSGS due to the disclosure of their confidential information; that is the case irrespective of whether it would be “ reasonable ” for them to do so. irrespective of whether it would be “reasonable” for them to do so or not. c. Mr Greenwood says that some borrowers openly advertise their participation in the PRSGS in order to argue that it cannot be the case that borrowers would be discouraged from participating if the withheld information were to be disclosed by DLUHC (§§24-25, Grounds of Appeal). However, the fact that some borrowers may choose to publish certain information themselves does not undermine the fact that there is a real risk that other borrowers may be discouraged from participating if ARA Venn cannot keep their commercial information confidential. d. Mr Greenwood argues that the importance of transparency in relation to potential conflicts of interest relating to the PRSGS should be decisive. The Commissioner agrees that transparency is important. However, this must be balanced against the other important matters of public interest referred to above. Further, other mechanisms are in place to manage conflicts of interest, which addresses some of the public interest in this respect. In particular, in response to the particular conflict relied on by Mr Greenwood, Homes England has acknowledged the issue and put in place new governance arrangements to deal with it. .6 The Appellant’s reply

15. The Appellant replied in submissions dated 22 nd March 2025. He submitted that any commercial prejudice is vanishingly small but rather than argue no prejudice of any kind is possible, he focuses his argument on the public interest in disclosure. He further added: ‘3. At point 29, the Commissioner argues that the guaranteed bonds do not constitute directly public funds, and therefore the weight of public interest is weaker. The Commissioner goes as far as arguing that it is “a false premise” to suggest they are public funds, as because loans are provided to borrowers by ARA Venn using funds raised in the capital markets; they are not taxpayer funded.

4. This argument is does [sic] not fully appreciate the structure of the arrangement, and therefore makes an artificial distinction. As guarantor of the debts under the scheme, the taxpayer is liable should the companies borrowing under the scheme not be able to meet their debts.

5. Ultimately, taxpayer funds back these loans, and will have to be disbursed should something go wrong, thus not being available to fund other public good. Given the consequences of something going wrong whether loans are made directly by government or through this capital markets scheme, there is no different in the level of public interest in transparency about use of what are in practice public funds. It appears clear that the public will rightly want to know where their funds have been used to provide guarantees as much as if money was being directly.

6. I am surprised that the Commissioner has not directly addressed a clear existing example of where a conflict around a beneficiary of these loans has been identified, as set out in point 10 of my grounds of appeal. “A Sunday Times investigation I worked on revealed Boris Johnson’s former chief of staff, Eddie Lister, failed to disclose a material conflicts of interest in relation to this loan. Whilst serving as chair of Homes England, the quango which manages the loans, he failed to disclose he was being paid by Delancey whilst overseeing the approval of a guarantee offered to a project co-owned by Delancey.1”

7. This goes to the heart of my public interest case in disclosure. If we do not know who has received these funds, assessment of whether other conflicts have arisen cannot be conducted in my public watchdog role as an investigative reporter. There is a clear public interest in such public watchdog activity being conducted. The Second Respondent’s response to the appeal

16. In written submissions dated 3 rd April 2025, the Second Respondent submits: ‘ Commercial Interests

11. Other than an assertion in GA/16 – 18, there is nothing in the way of argument or evidence provided by Mr Greenwood which supports a contention that commercial interests would not be engaged, nor that disclosure of the information would not be prejudicial to those interests.

12. Contrary to Mr Greenwood’s bare assertion, the Commissioner considers the commercial position at DN/10 – 14, and the SoS’s factual case was accepted by the Commissioner. There was no requirement or reason for the Commissioner to go further or “interrogate” in Mr Greenwood’s terms, the evidence before him.

13. In the annexures to the witness statement of Matthew Cus dated 3 April 2024, the Tribunal has evidence of the commercial interests and prejudice. Prejudice

14. GA/18 relies on an unevidenced assertion that “[t]hose accepting the loans know that they are accepting a taxpayer backed product, and cannot claim not to understand this will come with an added degree of scrutiny”, and GA/19 misunderstands the Commissioner’s reasoning and approach in DN/12.

15. At GA/20 – 21, Mr Greenwood elides the s.43(2) test with the public interest test. The point is bad on that basis. Although at GA/22 -27 further points are made in respect of potential lack of prejudice by Mr Greenwood, the position of other companies has little to do with the applicable legal tests in FOIA. Public Interest

16. The public interest is the thread running through the Grounds of Appeal. The Tribunal will have noted that at DN/15 the Commissioner notes that the SoS’s position is that there is strong public interest in the disclosure of the information. However, at DN/17, the Commissioner notes the counter-argument in respect of the public interest arising from the potential to compromise the loans and the commercial position. That balancing exercise is undertaken in DN/21 – 22. There is no error in the Commissioner’s reasoning. The Appellant’s Reply to the Second Respondent’s response

17. In response to the submission that no government funds are advanced to borrowers or bondholders unless and until scheduled interest and principal guarantees are called. Mr Greenwood submits: ‘This is simply not a fair reflection of the situation. If a borrower defaults on their debts, the taxpayer will be required to step in and compensate ARA Venn. The structure of this guarantee means taxpayer money is equally at risk as if the government had lent directly. There can be no meaningful distinction between the two situations, in terms of the risk that taxpayer funds are put in, and the suggestion that public money is not at risk is simply not accurate’.

18. Replying to the assertion that it is integral to the scheme that bondholders do not have visibility to the underlying borrowers and loans, Mr Greenwood responds: ‘ The attraction of the scheme to investors is that the bonds issued are guaranteed by the state. This gives investors greater security than commercial loans, in the same manner as government gilts and bonds, and the loans are priced accordingly (as set out in point 11 of ARA Venn’s letter). It is not clear why revealing the underlying investments beneath the bonds would have any impact on the value of the bonds, given the existence of this government guarantee. Under this, the government will stump up whatever the quality of the projects that borrow from the scheme. That is the sole material determinant of the price of the bonds. Indeed, the point that these loans are guaranteed by the UK government is advertised high on the ARA Venn’s website1 itself as a key attraction for the product. Secrecy is therefore clearly not integral to the functioning of the scheme’.

19. In relation to the suggestion that the loan agreements lack express provision for disclosure under FOIA, indicating that borrowers do not reasonably contemplate public disclosure of their participation, Mr Greenwood submits: ‘It is common knowledge that information held by the government is subject to FOIA. The lack of an explicit condition stating this in the contract cannot have any bearing on the public interest in disclosure. The absence of an explicit clause setting out FOIA responsibilities does not indicate any intention on the behalf of the department to reassure borrowers that they should not expect information to be released. This point can be discounted entirely’.

20. Further to the assertion that it would prejudice the commercial interests of those borrowers who have chosen not to publish their participation, in particular their ability to secure refinancing or impact the refinancing terms available, Mr Greenwood states: ‘It is not at all clear why this would be the case. If accepting state-backed loans was really prejudicial to a company's commercial interests, why have so many companies chosen to advertise their participation? It is of note that disclosure of the recipients of other state-backed loans and grants have been required to be disclosed with the recipients of furlough payments2 and Coronavirus Business Interruption Loans (CBILs)3 being publicly available. Given no apparent evidence of prejudice to the commercial interests of companies using these schemes due to this transparency, there is little evidence to suggest there would be such evidence in this case. Moreover, it should be noted that the PRS sector in the UK is reportedly “at a standstill”, with both starts and completions of build-to-rent i.e., PRS schemes significantly down in 2023. With the PRS sector suffering from severe headwinds, the possibility of the government having to cover the guarantees does not appear to be a remote prospect, but rather a material risk. In such a situation, the public interest in knowing whose losses are being covered by the taxpayer is significantly strengthened’.

21. Further to the suggestion that disclosure would reduce the popularity of the scheme, which could lead to a loss of liquidity, impacting the value of the bonds, the Appellant argues: ‘It is not at all clear why such a situation would arise. The attraction of these loans is entirely that they are state backed, and they are priced by the market on that basis. The attractiveness of the scheme has no bearing on the price of the bonds. Investors will be aware that this is government backed funding, and can reasonably expected to understand that FOIA applies to matters related to that funding’. Legal Framework

22. Section 43 of the Freedom of Information Act provides: ’43. – Commercial Interests (1) Information is exempt information if it constitutes a trade secret. (2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)….

23. Section 43 is a qualified exemption to disclosure and is therefore subject to the public interest test under s.2(2)(b). This states that a public authority does not have to provide information if: ‘…in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information’. The Tribunal's Role

24. By section 58 FOIA the Tribunal’s role is to consider whether the DN is in accordance with the law or where the ICO’s decision involved exercising discretion, whether it should have exercised it differently. It is a full merits jurisdiction. The Tribunal may receive evidence that was not before the ICO and may make different findings of fact from the ICO. If the Tribunal determines the DN was not in accordance with the law or that a discretion should have been exercised differently it can allow the appeal and/or substitute a different Notice that could have been served by the ICO. Unless these apply the Tribunal shall dismiss the Appeal. Discussion and Conclusions

25. For the purposes of determining this appeal, we have considered those documents contained within the open bundle consisting of 155 (electronic) pages, the closed bundle of 97 (electronic) pages and the closed supplemental bundle of 4 (electronic).

26. A rule 14 direction was made in relation to the supplementary bundle by Judge Foss on 13 December 2024. I reviewed that decision under my ongoing duty under Rule 14 and agreed that it should continue.

27. I further made another Rule 14 direction in relation to the closed bundle of 97 electronic pages on the basis that disclosure to any person other than the Respondents and their legal representatives, would prematurely reveal the nature and/or content of the withheld information and defeat a purpose of the appeal. Issues

28. The Tribunal has to determine the following issues:

29. In order for the exemption under s.43(2) to apply, disclosure must, or be likely to, prejudice the commercial interests of any person. Once though that gate, the balance of public interest in maintaining or disclosing the information falls to be assessed. 1) Is the S.43(2) exception engaged? Is there a ‘real and significant risk’ of prejudice to the relevant commercial interests?’

30. The ICO’s case as set out in the DN is that disclosure “ would be likely to ” prejudice commercial interests (i.e. it does not need to be more likely than not to occur). The ICO concludes that disclosure of the withheld information would reveal information about the debts and financing terms relating to the borrowers, who expect market standards of confidentiality . If ARA Venn is not able to provide market standards of confidentiality to borrowers, there is a real and significant risk that its ability to attract borrowers to participate in the PRSGS will be prejudiced.

31. The Appellant states in his submissions dated 22 nd March 2025 that any commercial prejudice is vanishingly small but rather than argue no prejudice of any kind is possible, he focuses his argument on the public interest in disclosure.

32. In light of the fact that the Appellant does not accept that there would be a ‘real and significant risk’ that disclosure ‘would be likely’ to prejudice commercial interests (prejudice which would be ‘vanishingly small’ seems to fall significantly below this threshold) we do not treat the Appellant as having conceded this point.

33. We accept – and it does not seem to be in dispute – that commercial interests would be engaged.

34. However, we do not find that prejudice is made out on the evidence.

35. We explain the reasons for this below.

36. If we are wrong about this and disclosure of the information would be likely to prejudice commercial interests, we go on to consider whether the Public Interest weighs in favour of maintaining that exception. We note here that prejudice is relevant not just to whether s.43(2) is engaged, but also to the public interest considerations. The existence of prejudice sufficient to meet the first stage of the test (which has a low threshold) does not determine the second part of the test.

37. The Second Respondent submits that the annexures of the witness statement of Matthew Cus dated 3 April 2024 provides evidence of the commercial interests and prejudice. We therefore start with consideration of this evidence.

38. The letter from PRS Operations Ltd to Matthew Cus, dated 28 th March 2024 states that disclosure would prejudice ARA Venn, PRSO and PRSF’s commercial interests, as well as those of bondholders and borrowers. Because: (a) Borrowers expect ‘Market standards of Confidentiality’;

39. It is integral to the operation of the scheme that bondholders do not have visibility through to the underlying borrowers and loans. We examine each of these in further depth. (i) Market Levels of Confidentiality/Taxpayer Funded?

40. Mr Greenwood maintains that borrowers cannot reasonably expect market standards of confidentiality when participating in a government-backed scheme, as taxpayers will want to know where their money has been spent. He argues that those accepting the loans cannot claim not to understand that this will come with an added degree of scrutiny. It is suggested that ARA Venn cannot reasonably guarantee market standards due to the applicability of FOIA.

41. It is submitted in response that the loans are not taxpayer funded: loans are granted to borrowers by ARA Venn using funds raised in the capital markets.

42. The central issue before the Tribunal therefore is whether there exists a material distinction, for the purposes of transparency and public accountability, between (a) loans made directly by government and (b) loans made through a capital markets scheme that are guaranteed by the State. The Respondent contends that such a distinction should be drawn. The Appellant argues that, in substance, taxpayer liabilities are engaged in both scenarios, thereby sustaining an equivalent public interest in transparency.

43. We make the following findings: (a) Under the arrangement, the State assumes the role of guarantor in respect of debts incurred by borrowing entities. That guarantee is not merely formal: it is a commitment, enforceable upon default, which transfers the risk of loss from the borrower and (in substance) the lender to the public purse. (b) The practical effect of the guarantee is to constitute a contingent liability of the taxpayer. If the borrowers fail to meet their obligations, the guarantee will be called upon, and public funds will be disbursed. That prospect is neither speculative nor remote in principle; it is inherent to the mechanics of a guarantee and forms part of the State’s financial exposure.

44. Where a guarantee is activated, monies that would otherwise be available for other public purposes are necessarily diverted to loss absorption. Even prior to activation, the existence of contingent liabilities affects fiscal planning, risk management, and the allocation of resources. The public interest in understanding—at an appropriate level of detail—the extent, location, and conditions of such exposure is, we find, thereby engaged.

45. The distinction proposed between (a) direct lending and (b) capital markets lending backed by a State guarantee is, we conclude, artificial. In both scenarios, the State assumes financial risk: in the former, by immediate disbursement; in the latter, by a binding undertaking to disburse upon specified contingencies.

46. Transparency facilitates informed public scrutiny of decisions that expose the public purse to risk, whether actual or contingent. It enables assessment of the prudence, proportionality, and fairness of such commitments and—importantly—deters improvidence by subjecting decision-making to external review. In the present context, public visibility regarding the deployment of guarantees operates in materially the same way as visibility regarding the deployment of direct loans.

47. We find that the public is entitled to know where State-backed financial support has been applied, whether by direct advance or by guarantee, so that the nature and extent of the exposure can be evaluated. The entitlement is not diminished merely because the mechanism chosen is intermediation through capital markets rather than direct lending.

48. When considering prejudice, we also note the concerns raised around disclosing financing terms – however the Appellant has only requested the totals guaranteed, not on what interest rates each loan might be repaid, so detailed financing terms are not being requested.

49. We note here the submission by Mr Greenwood that: ‘Moreover, it should be noted that the PRS sector in the UK is reportedly “at a standstill”(4), with both starts and completions of build-to-rent i.e., PRS schemes significantly down in 2023 (5). With the PRS sector suffering from severe headwinds, the possibility of the government having to cover the guarantees does not appear to be a remote prospect, but rather a material risk. In such a situation, the public interest in knowing whose losses are being covered by the taxpayer is significantly strengthened’.

50. No evidence about the PRS sector was served on the Tribunal (other than footnotes to the submission set out above – which we were unable to read, as footnote 4 was not accessible due to a paywall and footnote 5 did not connect to an article). In the absence of evidence on this issue, we made no findings in relation to it.

51. On a slightly separate - but related - note it was stated that the loans impose confidentiality obligations which do not include express provision for disclosure pursuant to FOIA. It is suggested that whilst any disclosure required by law is obviously permitted, the lack of express contractual provision is indicative that borrowers do not contemplate the public disclosure of their participation in the scheme.

52. In light of our findings above that the loans involve government backed funding, we find that investors can and should reasonably expect compliance with FOIA obligations (and an added degree of scrutiny generally). The lack of an explicit clause referring to this should not be taken as an assurance that they should not expect information to be released. (ii) Visibility to underlying borrowers and loans

53. The Respondent argues that disclosing borrower identities would undermine the Programme’s design, which depends on bonds being priced solely on the government guarantee rather than borrower creditworthiness. If identities were revealed, investors could “look through” to underlying loans, damaging this principle. This would likely reduce funding options for smaller borrowers, increase their borrowing costs, and make the scheme less attractive overall.

54. We are not persuaded by this submission.

55. The Respondent’s case rests primarily on assertions about investor behaviour and market perception: that disclosure would cause bondholders to prefer bonds linked to higher rated underlying credits, thereby diminishing liquidity and increasing costs for smaller borrowers. These claims are unsupported by empirical evidence or market analyses. We were not provided with examples of similar schemes demonstrably harmed by mere disclosure of counterpart identities. We have not been provided with quantitative analysis, investor surveys, liquidity studies, or pricing data showing sensitivity to borrower visibility under guaranteed programmes. In contrast Mr Greenwood referred to the fact that transparency has been required for recipients of other state-backed schemes including furlough payments and Coronavirus Business Interruption loans, he states there was no demonstrable harm to commercial interests. The Respondents did not dispute this.

56. We find that assertions that it is “inevitable” that bond holders will prefer bonds linked to loans to higher rated credits, reducing the funding opportunities and increasing the costs of borrowing for smaller/medium borrowers, is unsupported by evidence. The risk borne by bond investors, according to the Respondent’s own description, is fundamentally determined by the sovereign guarantee . Disclosure does not alter the legal effect of that guarantee or the credit substitution mechanism. The Tribunal is not persuaded that the claimed prejudice is more than speculative. We find the Respondent has failed to demonstrate a causal link sufficient to meet the prejudice threshold under s.43(2). We have noted the lower threshold when applying ‘would be likely to prejudice’ (i.e. not more likely than not) but still conclude the test has not been met. The there must be more than a hypothetical possibility of prejudice occurring (even though the probability of prejudice occurring is less than 50%). We do not find that this has been established.

57. The bonds remain fully backed by a government guarantee. We find that it is that guarantee—not borrower identity—which determines pricing and investor risk. Visibility of borrower names does not change the legal or economic substance of the guarantee.

58. For the reasons set out above we find s.43(2) is not engaged. There is no ‘real and significant’ risk of prejudice to the relevant commercial interests. What is set out, is hypothetical, which does not meet the legal threshold. However if we are wrong about this, in light of the lower threshold, we go on to consider the public interest. 2) Does the Public Interest weigh in favour of disclosure?

59. It is accepted by the Commissioner that there is a strong public interest in ensuring transparency around the way that ARA Venn is delivering the scheme. This promotes accountability and helps the pubic to understand how the scheme is being delivered. We agree.

60. The Commissioner concludes however that the transparency arguments must be balanced against the public interest in ensuring that ARA Venn is able to attract borrowers and implement the scheme, without undue prejudice to its interests. This prejudice would be likely to negatively impact the scheme and therefore the building of private rental housing. The ICO concludes there is a significant public interest in ensuring that the success of the scheme is not damaged in such a way.

61. We agree that there is a strong public interest in the scheme being successful and leading to additional private rental housing being built. However, our findings in relation to prejudice are set out above and are directly relevant to the public interest. We again reiterate that in our conclusion, d isclosure does not change the guarantee or risk profile. We do not accept that it would lead to the scheme being unsuccessful and therefore negatively impact the building of private rental housing.

62. It is asserted that there would be a broader negative reputational impact. We are not persuaded that this is so. As Mr Greenwood submits ‘24. It is also hard to see how market participants would think less of a company just knowing it had participated in a government-backed loan scheme, especially when the intentions of that scheme are to boost housing numbers, not for example, to rescue poorly performing companies’. We note the submission that some companies openly advertise their government funding. We agree that this suggests there are no inherent reputational concerns surrounding disclosure - that is not to say that all companies would want to disclose this information and we accept that doing so may discourage them from participating, but we are not persuaded, on the evidence before us, that there is a ‘real and significant risk’ of this (which is a higher threshold than ‘may’) for the reasons set out.

63. Mr Greenwood makes the core submission that disclosure is an important anti-corruption measure. He provides an example of where a conflict around a beneficiary of these loans was identified – at point 10 of his grounds of appeal. He describes that an investigation on which he worked, revealed that Boris Johnson’s former chief of staff, Eddie Lister, failed to disclose a material conflict of interest in relation to the loan. Whilst serving as chair of Homes England, the quango which manages the loans, he failed to disclose that he was being paid by Delancey whilst overseeing the approval of a guarantee offered to a project co-owned by Delancey. He explains ‘ This goes to the heart of my public interest case in disclosure. If we do not know who has received these funds, assessment of whether other conflicts have arisen cannot be conducted in my public watchdog role as an investigative reporter. There is a clear public interest in such public watchdog activity being conducted’.

64. He made this point in his email dated 21 June 2023: ‘Knowing which companies have received these guarantees is therefore an important anti-corruption measure. It will ensure that given past conflicts, the public can have confidence that no other inappropriate or conflicted parties received these guarantees, or that appropriate deconfliction measures were put in place. If other incidents where conflicts were not properly managed did occur, disclosure will allow public officials to be held to proper account through public interest reporting as part of the public watchdog function of the press, in which disclosure under freedom of information disclosure is a crucial part’.

65. We find this submission highly persuasive and attach significant weight it.

66. We have considered the ICO’s conclusion that disclosure of anonymised size and dates of loans in the accounts of the Venn-controlled company that administers the scheme goes some way to meet he public interest in transparency. We agree with Mr Greenwood’s submission that the value of this information is highly limited as it would not allow conflicts between companies and the government to be explored. It would not address the ‘anti-corruption measure’ arguments that he relies upon.

67. We have also considered the submission that other mechanisms are in place to manage conflicts of interests, which addresses some of the public interest in this respect. In particular, Homes England has acknowledged the issue and put in place new governance arrangements to deal with it.

68. We have considered the measures referred to at page 93 of the Homes England 2023 Annual Report which states: ‘Declarations of interest The Agency has reviewed its detailed policy and guidance on declarations of interest for all staff, which complies with the requirements of the Civil Service Management Code and includes the requirement to make an annual declaration of interests as well as record any changes. We review all recorded interest returns to ensure that they are permitted, and they are managed as part of our assurance to Board. Any sensitive interests are managed through an Ethics group, which is accountable to the Audit Assurance and Enterprise Risk Committee. We also have a policy in place for Board Members… Members must declare interests at any meeting and withdraw from a meeting before discussion of any matter in which they have an interest. As part of our additional assurance, we now hold a Register of all Board and officer interests centrally to allow Secretariat and project officers to review member and officer interests more readily when they are bringing reports to committees’.

69. We accept this submission and find that it does address some of the public interest in respect of this point. Nonetheless when all the evidence is considered cumulatively, we find that the public interest in transparency outweighs unproven commercial concerns, as openness promotes accountability and confidence in public, government-backed schemes . Conclusion

70. We have concluded that the claimed commercial prejudice is speculative and unsupported. Conversely, there is a strong public interest in accountability and transparency where public funds and contingent liabilities are involved. The public has a legitimate interest in knowing who stands to benefit. The request concerns only limited information - not sensitive financial terms, so the alleged harm is limited. We find that disclosure promotes accountability without undermining the scheme’s integrity. Disclosure would enable scrutiny of the use of taxpayer-backed guarantees and the associated risks.

71. On balance, we conclude that the public interest in disclosure outweighs the arguments for maintaining the exemption.

72. Accordingly we consider the DN not to be in accordance with the law – the appeal is therefore allowed. Signed Date: Judge Kiai 12 th December 2025