United Kingdom Research & Innovation v The Information Commissioner & Anor

On 15 August 2017 Dr Kirkham wrote to the EPSRC to make the First Request in the following terms:

The EPSRC responded on 11 September 2017 confirming that it held the information identified in parts 1 and 2 of the request for each institution, it held scores for each CDT, and it held feedback provided to each institution. However, EPSRC refused to disclose that information, relying on the exemptions provided for in sections 36(2)(b) and (c) (relying on the opinion of its then Chief Executive Officer, Professor Nelson, who was a “qualified person” for the purposes of FOIA), as well as section 41 and 40(2) of FOIA. EPSRC maintained that position on internal review.

The Requester complained to the Information Commissioner, arguing that some of the information he had requested amounted to environmental information, and the appropriate regime in respect of that information was therefore the Environmental Information Regulations 2004 (“EIR”), rather than FOIA, and arguing that the exemptions invoked in refusing to disclose the requested information were not applicable.

The Information Commissioner carried out an investigation and, by a Decision Notice dated 7 September 2018 (the “First Decision Notice”), found:

The Information Commissioner ordered that the scores and feedback letters be disclosed, subject to redaction of personal information contained in them.

Dissatisfied with this outcome, Dr Kirkham appealed the First Decision Notice to the First-tier Tribunal insofar as it upheld the non-disclosure of the emails to individual researchers.

On 15 May 2018 the Requester made the Second Request (which overlapped with the First Request) to UKRI in the following terms:

On 12 July 2018 UKRI responded to the Second Request. It refused to disclose the requested information, initially relying on s36 and s.41 FOIA. On internal review UKRI abandoned its reliance on s.36 but maintained reliance on s.41 FOIA. The Requester complained to the Information Commissioner in relation to its handling of the Second Request.

The Information Commissioner investigated the complaint and, by a Decision Notice dated 19 March 2019 (the “Second Decision Notice”), found:

The Information Commissioner decided that UKRI was, therefore, entitled to rely upon the s.41 FOIA exemption and required no further action to be taken.

Dissatisfied with this outcome, on 10 April 2019 the Requester appealed the Second Decision Notice to the First-tier Tribunal.

FOIA provides for a general right of access to information held by public authorities.

Section 1 FOIA provides:

The general right of access to information provided for by section 1 is subject to certain exemptions, as explained in section 2 FOIA, which provides (so far as relevant to this appeal):

Section 36 provides for a qualified exemption related to prejudice to the effective conduct of public affairs. It provides (so far as relevant to the circumstances of this appeal):

Section 41 FOIA creates an absolute exemption in relation to certain information provided in confidence. It provides:

Section 81 FOIA deals with the application of FOIA to government departments. It provides:

Reg. 2(1) defines “environmental information” as:

Appeals EA/2018/0216 (which related to the First Request) and EA/2019/0139 (which related to the Second Request) were consolidated and heard together at a remote oral hearing on 7 November 2023.

While UKRI and the Information Commissioner made written submissions opposing the appeal, neither was represented at the hearing before the First-tier Tribunal. The Requester attended the hearing and represented himself.

The First-tier Tribunal allowed both appeals and substituted for the First ICO Decision Notice and the Second ICO Decision Notice a Notice requiring the material identified by the Requests which had not already been disclosed pursuant to the First Decision Notice to be disclosed (subject to redaction of personal information) within 35 days of the date of the decision (the “FtT Decision”).

UKRI applied to the First-tier Tribunal for permission to appeal the FtT Decision. That application was unsuccessful.

UKRI renewed its permission application to the Upper Tribunal. After Judge Citron refused permission on the papers UKRI exercised its right to renew the application at an oral hearing, and the matter came before me.

UKRI’s grounds of appeal can be summarised as:

The Information Commissioner resisted Appeal Ground 1 but supported Appeal Grounds 2 and 3.

The Requester resisted each of the grounds of appeal and made some additional arguments which he believed strengthened the case for dismissing UKRI’s grounds of appeal or for denying UKRI the relief it seeks. I refer to these as the Requester’s “Additional Reasons”. They can be summarised (using the numbering adopted by the parties) as:

Each of the Requester’s Additional Reasons were resisted by both UKRI and the Information Commissioner.

I granted permission to appeal in respect of each of UKRI’s appeal grounds and I also gave permission for the Requester to argue his Additional Reasons. I ordered an oral hearing of the substantive appeal.

I shall address the various Appeal Grounds and Additional Reasons in the order that counsel addressed them, but retaining the numbering used by the parties in their skeleton arguments and written submissions.

The Requester’s Additional Reason 3A proceeded from his position that some or all of the information covered by the Requests was “environmental information” for the purposes of EIR, and so both the Information Commissioner and the First-tier Tribunal applied the wrong regime in respect of that information. Because this argument alleges such a fundamental error of law which is relevant to both appeals, I shall address this argument first.

While the Requester expressed his First Request as “a request under the Freedom of Information Act (2000)”, the Information Commissioner nonetheless considered whether the EIR was the appropriate regime to apply. However, she concluded it was not and gave reasons for her conclusion.

When the Requester made the Second Request, he framed it as a request falling under the EIR:

The Information Commissioner did not address the fact that the Requester had framed the Second Request as being made under the EIR, but she applied FOIA, and not EIR, just as she had done in her First Decision Notice.

In the appeal before the First-tier Tribunal, the Requester argued that the EIR applied to much of the information in the Requests because the information requested related to measures that fell within the EIR. That argument was acknowledged by the First-tier Tribunal but rejected.

The First-tier Tribunal noted that the third limb of the definition of “environmental information” in EIR (set out in full in paragraph 23 above) referred back to the previous two limbs, and explained what it considered the proper approach to determining the correct regime to apply in paragraph 20 of the FtT Decision (see pages 25-6 of the UT Bundle):

In DBEIS v Information Commissioner and Henney [2017] EWCA Civ 844 (“Henney”) the Court of Appeal considered the proper approach to determining whether information is “environmental information” for the purposes of the EIR. Beatson LJ said the “starting point” was that the EIR must be interpreted as far as possible in the light of the wording and purpose of Parliament and Council Directive 2003/4/EC (the “Directive”), which itself gives effect to international obligations arising under the Aarhus Convention (at [14]). He said it was well-established that the term “environmental information” in the Directive was to be given a broad meaning, but cautioned that there were limits to the broad approach, citing the statement in Glawischnig v Bundesminister für soziale Sicherheit und Generationen(Case C-316/01) EU:C:2003:343 (“Glawischnig” at [25] that the fact that the Directive is to be given a broad meaning did not mean that it intended:

Beatson LJ explained the task of determining whether information is “environmental information” for EIR purposes as comprising two elements:

That is precisely what the First-tier Tribunal did: it found that the “measure” that the requested information was “on” was “the performance of Centres for Doctoral Training”. The Requester did not dispute that finding, and it was a finding that was clearly open to the First-tier Tribunal on the evidence before it when approached in a way consistent both with the Directive and with Glawischnig. Indeed, it was not only a permissible finding, it was the only finding open to it.

The First-tier Tribunal found that the measure of assessing the performance of CDTs did not itself have the requisite environmental impact. While the Requester argued that the underlying data was originally collected by the universities/CDTs for purposes that did have the requisite environmental impact, that is insufficient to render the requested information “environmental information”, and it is not consistent with the approach approved by the Court of Appeal in Henney, because it ignores the identified “measure” that the requested information was “on”. The measure was not “on” the underlying research, it was “on” the assessment of the performance of CDTs.

For these reasons, I am not persuaded that the First-tier Tribunal erred in applying the tests under FOIA, and not EIR, in assessing whether UKRI had a duty to disclose the information requested by the Requester.

Further, if I am wrong about all of this and the Requester is right in his analysis, that would disclose such a fundamental error of law in the FtT Decision that it is difficult to see how it could be appropriate for the Upper Tribunal to exercise its discretion not to set the decision aside. If the First-tier Tribunal applied the wrong statutory framework to its decision making then surely the only proper course would be to set the decision aside and remit it to the First-tier Tribunal to consider the matter afresh applying the correct statutory scheme.

The Requester argued that Additional Reason 2 was a “complete answer” to UKRI’s case in these appeals, so it makes sense to deal with it before considering UKRI’s appeal grounds, as the parties did at the hearing before me.

The Requester says that UKRI failed to advance a coherent case before the First-tier Tribunal, and relies on Clare Page v The Information Commissioner & Anor [2025] UKUT 308 (AAC) (“Page”) as authority for the proposition that when a respondent has failed to address a point of law in issue in an appeal, the tribunal is entitled to take the appellant’s case on the law on that point at face value. The Requester says that UKRI should not now be permitted to advance arguments that it did not make at first instance.

Mr Goss rightly conceded that the First-tier Tribunal would likely have been assisted had UKRI participated more actively in the First-tier proceedings, but he disputed the Requester’s suggestion that UKRI had not advanced a case before the First-tier Tribunal at all.

I can deal with Additional Reason 1 briefly because, while UKRI neither appeared nor was represented at the hearing of the appeal before the First-tier Tribunal, it did make written submissions in those proceedings and in those submissions it essentially aligned itself with the case being advanced by the Information Commissioner, who was represented. The points raised by UKRI in its appeal grounds are points that were “live” before the First-tier Tribunal (albeit advanced by the Information Commissioner rather than UKRI), and UKRI’s appeal is brought on the basis that the First-tier Tribunal erred in the way it answered those points, so Page is distinguishable. For these reasons, Additional Reason 1 does not get off the ground.

The Requester made much of the “absurd” way he said UKRI pursued its case, and argued that given UKRI’s “unusual conduct” it should be denied a remedy. However, the role of the Upper Tribunal on appeal is to identify whether the first instance tribunal has erred materially in law, not to punish parties for the way they have presented their case below. While some of the matters raised by the Requester such as the conduct of the individuals who had conduct of its case at an earlier stage, are no doubt the cause of some embarrassment to UKRI, they are irrelevant to the matters I must decide in these appeals.

The UKRI relied upon the opinion of “qualified person” Prof Nelson in resisting disclosure of the information the subject of the First Request under section 36 FOIA, but did not rely on s.36 FOIA in its response to the Second Request. The Requester inferred from this decision that UKRI’s new qualified person (Sir Mark Walport) was unwilling to provide the requisite opinion under section 36 FOIA, and this indicated that reliance on section 36 FOIA in relation to the First Request was not appropriate. The Requester said UKRI was estopped from relying on that exemption in respect of the First Request. That argument is misconceived for two reasons:

The First-tier Tribunal was clearly aware that Professor Nelson (EPSRC’s “qualified person”) and Sir Mark Walport (UKRI’s “qualified person”) took different approaches to section 36 FOIA. It was entitled to find that UKRI’s decision not to rely on section 36 in relation to the Second Request did not undermine or otherwise impugn reliance on section 36 in relation to the First Request, because the “status of an opinion by a qualified person … is unaffected … by the fact that the next qualified person came to a different view” (see paragraph 21 of the FtT Decision). Neither am I persuaded by the Requester’s argument that UKRI should be treated as having abandoned its reliance on section 36 FOIA in relation to the First Request because of its subsequent conduct.

The First-tier Tribunal directed itself correctly as to the test it had to apply in considering whether the exemption under s.36 FOIA was engaged: there had to be a “reasonable opinion of a qualified person”, and “there are in many circumstances a range of reasonable opinions an individual may take” (see paragraph 21 of the FtT Decision).

Prof. Nelson’s opinion was expressed in an email sent on 8 September 2017 (to be found in the First-tier Tribunal appeal bundle at page E417) was:

The Requester does not accept that Prof. Nelson genuinely held that opinion, believing that he simply “rubber stamped” the request for an opinion without having taken the trouble to understand the background to form his own view.

While the First-tier Tribunal’s reasons would have been clearer had it said more about what it concluded instead of simply reciting without criticism what the Commissioner had concluded, it is adequately clear when the FtT Decision is read as a whole that it accepted at face value that Prof. Nelson’s opinion was genuinely held and that it was reasonable.

It is fair to say that Prof. Nelson’s opinion expressed in his email was extremely brief and wholly lacking in explanation. More detail of why Prof. Nelson considered section 36 FOIA to be applicable would undoubtedly have been helpful and might have affected the weight that the First-tier Tribunal felt able to give it. However, the First-tier Tribunal was entitled to accept Prof. Nelson’s opinion as being reasonable and genuinely held.

That does not mean that the First-tier Tribunal was bound to find the exemption to apply. Rather, it engaged section 36 FOIA, opening the door to consideration of the merits of the public authority’s reliance on section 36 FOIA. That is what the First-tier Tribunal did. Ultimately it decided that the balance of the public interest fell in favour of disclosure rather than in upholding the exemption, a decision which I discuss further in relation to Appeal Ground 1 below.

Prof. Nelson’s opinion was that the public authority should apply the exemption provided for by section 36 FOIA to resist disclosure of the information requested in the First Request. As discussed above, the First-tier Tribunal was entitled to accept Prof. Nelson’s opinion as being reasonable and genuinely held. The public authority disclosed the information it was required to disclose by the Information Commissioner’s First Decision Notice. I do not consider that Additional Reason 4 adds anything to Additional Reason 3 discussed above.

This Additional Reason is a misstatement of the law. While section 81(2)(a) FOIA prevents reliance on the exemption in section 41(1)(b) FOIA in respect of information disclosed between government departments, section 41 FOIA expressly provides for the exemption being available where the information is obtained from another person “including another public authority”. The parties in question in this case are not government departments, so section 81(2)(a) FOIA is not applicable, and section 41 FOIA applies.

The questions that must be answered when assessing whether the exemption under section 41 FOIA applies are:

Whether the confiding public authority would itself be amenable to a FOIA request in respect of the relevant information, and whether an exemption would be available to it, are not relevant to the issue of whether the section 41 FOIA exemption is available to the recipient public authority. Additional Reason 5 therefore fails.

This argument is also ill-founded. The Higher Education and Research Act 2017 (“HERA”) gave UKRI the power to provide financial support on a conditional basis, including (under section 94(3)(c) HERA) requiring a person to whom financial support is given to provide UKRI with “any information it requests for the purpose of the exercise of any of its functions”. However, even if funding was provided to UKRI on the condition that the recipients of funding provided information that UKRI requested, such a condition would not preclude the information being provided on a confidential basis. Indeed, the Supreme Court in R (Ingenious Media Holdings plc) v Revenue & Customs Commissioners [2016] UKSC 54 said (at paragraph17) it was a “well established principle of the law of confidentiality” that “where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes.” That principle is referred to as the Marcel principle after the case of Marcel v Comr of Police of the Metropolis [1992] Ch 225.

The Marcel principle may be overridden by explicit statutory provisions to the contrary (see In re Arrows Ltd (No 4) [1995] 2 AC 75 per Lord Browne-Wilkinson at 102:

HERA does not include any express provision requiring UKRI to disclose information to any person and neither does it expressly authorise any specific disclosure to third parties. While section 1 FOIA makes express provision for the public disclosure of information by public authorities in response to a request, it also provides for an exemption in respect of information provided in confidence applicable where “disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person”.

I was not taken to any contractual provision that suggested that the Marcel principle should be overridden. While the contract between EPSRC and the CDTs made reference to the possibility of disclosure under information rights legislation, it must be remembered that the test under section 41 FOIA is about whether disclosure of the information to the public “otherwise than under the Act” would constitute an actionable breach of confidence, and the contract did not make provision for EPSRC to disclose information to the public otherwise than under information rights legislation.

For these reasons I am unpersuaded by Additional Reason 6 and do not consider the First-tier Tribunal to have erred in any of the ways argued by the Requester.

The First-tier Tribunal dealt but briefly with appeal EA/2018/0216. Its analysis is set out in paragraph 22 of the FtT Decision, which I reproduce in full:

The proper approach to section 36 FOIA was explained by the Upper Tribunal in Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC) (“Malnick”) as follows:

As discussed above, I am satisfied that the First-tier Tribunal correctly found the section 36 exemption to be engaged as a result of the email from Prof. Nelson, which it was entitled to find amounted to a reasonable opinion of a qualified person that publication of the requested information would or would be likely to result in prejudice.

UKRI’s Appeal Ground 1 argues that the First-tier Tribunal’s approach to the public interest test as it applies to section 36(2)(c) was flawed in two ways:

The Court of Appeal explained in DWP v Information Commissioner and Zola [2016] EWCA Civ 758 (“Zola”) how the opinion of a qualified person is to be factored into the balancing exercise (at paragraph 55):

Given that the First-tier Tribunal found the exemption under section 36 FOIA to be engaged and also found that the Information Commissioner “properly concluded that it is reasonable to be concerned at credible negative impacts of disclosure” (see paragraph 22 of the FtT Decision), it cannot be said that the First-tier Tribunal gave the qualified person’s opinion no weight at all, as Appeal Ground 1 asserts.

The First-tier Tribunal was not required to accord “deference” to the qualified person’s opinion but rather was required to give it “appropriate” consideration. So, what amounts to “appropriate consideration”? The answer to that must depend on all the circumstances of the case.

In this case Prof. Nelson provided a very brief opinion that was very short on reasoning. In those circumstances, the First-tier Tribunal was entitled to give the opinion very little weight. Having been persuaded that it was reasonable to be “concerned at credible negative impacts of disclosure”, the First-tier Tribunal was entitled to dig deeper.

The First-tier Tribunal quite properly carried out its own assessment of the various factors supporting disclosure and the various factors supporting upholding the exemption (as contemplated in Zola) giving those factors appropriate weight. Having carried out that exercise, the First-tier Tribunal concluded that while Prof. Nelson was right to “apprehend some discomfort from publication”, publication would contribute to accountability and would result in only “minimal harm”. That was an assessment that was clearly open to it.

The Requester argued with characteristic bluntness that the qualified person’s opinion “was given as much weight and consideration as it deserved”. I am bound to agree. It may be that Prof. Nelson could have provided a more compelling opinion, and UKRI could have made a stronger case on the negative impact that disclosure would have, but the time for doing so was before the First-tier Tribunal. These horses have long since bolted.

Turning to the second flaw for which UKRI argues, as will appear from what I have said in relation to the first argument in support of Appeal Ground 1, it is plain to me that the First-tier Tribunal did undertake the analysis contemplated in O’Hanlon. It identified the “values” giving the public interests their significance, it considered the interests of transparency and accountability that militated in favour of disclosure, and the negative impact that disclosure may have, which it decided would be minimal and would be outweighed by the interests favouring disclosure, and explained why it struck the balance as it did.

For these reasons I am not satisfied that the First-tier Tribunal erred materially in law in the way it performed the public interest balancing exercise and its reasons for deciding as it did were adequate. Appeal Ground 1 is dismissed and the First-tier Tribunal’s decision in EA/2018/0216 is confirmed.

The proper approach to establishing whether there is an actionable breach of confidence was explained by Megarry J in Coco v AN Clark (Engineers) Ltd [1968] FSR 415 (“Coco”) at 419:

In Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 (“Spycatcher”), Lord Goff set out three “limiting principles” applicable to the common law on confidentiality:

The First-tier Tribunal found that each of Lord Goff’s limiting principles in Spycatcher applied.

In relation to the first limiting principle, it found that the information the subject of the Second Request did not have the necessary quality of confidence because “[d]espite words to the contrary it is clear that UKRI did not consider some at least of the material to be confidential – else why did it publish case studies as publicity material explaining how it carried out its work?”

This reasoning discloses multiple errors: the First-tier Tribunal was wrong to focus on whether UKRI viewed the requested information as confidential because the quality of confidence depends not on how the recipient views the information, but rather on the reasonable expectations of the confider, and the terms on which the information was provided.

Further, it was logically fallacious for the First-tier Tribunal to reason that because UKRI did not view “some at least” of the requested information to be confidential, none of the information was confidential.

Similarly, while the fact that UKRI published information relating to two case studies in promotional material may establish that that information is not confidential because it is in the public domain, it is not capable of establishing that the information that has not been published, and so is not in the public domain, also lacked the necessary quality of confidence.

In relation to Lord Goff’s second limiting principle, the First-tier Tribunal found that “[the] material contained within returns may be helpful in giving a useful picture (for which see the next point) or is trivial – or both”.

Mr Goss, for UKRI, said that it was difficult to see how information could be both helpful in giving a useful picture and trivial at the same time, and argued that the First-tier Tribunal’s reasoning was inconsistent in this regard. I do not agree. Information may be trivial to one recipient but highly useful to another, depending on the recipient’s particular interest in receiving the information, and depending on what other information they have access to which might render the new information much more useful. As the Requester put it (in paragraph 20 of his skeleton argument): “[s]ometimes the whole can be greater than the sum of its parts”. However, this point tends to strengthen UKRI’s case because it highlights that information that is superficially trivial may on closer consideration have significant value, and so should not be excluded under Lord Goff’s second limiting principle.

What really matters is whether the preservation of the information’s confidentiality is “of substantial concern” to the party confiding the information (see Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (1984) 156 CLR 414 at 438), which is “not a high threshold” (per Arnold J in Force India Formula One Team Limited v 1 Malaysia Racing Team SDN BHD [2012] RPC 29 at 223).

In any event, since the First-tier Tribunal appeared to contemplate that at least some of the material contained within the returns was “helpful in giving a useful picture”, but did not identify what information fell into that category, and it did not explain adequately why it concluded that none of the information had the requisite quality of confidence.

For these reasons I am satisfied that the First-tier Tribunal erred in law when it decided that the requested information was “not in any meaningful sense confidential” (see paragraph 29 of the FtT Decision).

The First-tier Tribunal decided that even if the requested information did contain confidential material, there was a clear public interest in disclosure. Its reasoning on this is set out at paragraph 27 of the FtT Decision:

The First-tier Tribunal appears to have approached the applicability of the exemption under section 41 FOIA as if section 41 was a qualified exemption. It is not. Rather, it is an absolute exemption that is subject to the availability of a public interest defence to a claim for breach of confidence. The exercise to be carried out under section 41 FOIA is distinct from the section2(2)(b) balancing exercise. While section 2(2)(b) requires a weighing of the public interests in favour of disclosure against the public interests in maintaining the exemption, section 41 FOIA requires a determination of whether the public interest in favour of disclosure is such that it would defeat an otherwise actionable claim for breach of confidence.

Where information the subject of a request under FOIA is confidential, consideration of the applicability of section 41 FOIA must proceed from the starting point that there is a public interest in confidence being respected. In London Regional Transport v Mayor of London[2003] EMLR 4 (“LRT v Mayor of London”) Robert Walker LJ set out principles to be applied when evaluating a public interest defence to an action for breach of confidence. While he acknowledged that the defence was not restricted to those cases of wrongdoing on the part of the claimant, he said it was important to confine such a defence “within strict limits” as otherwise it risked becoming “not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence”. He approved the judge below’s application of a standard of whether the defendants had shown an “exceptional case” for publication of the relevant information.

Phillips CJ considered the circumstances in which the public interest defence would be available in HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 (“Prince of Wales”), formulating the test as “whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”. He said “the test to be applied when considering whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.” While the circumstances of the Prince of Wales case were very different from those in this appeal, the test articulated by Phillips CJ is of general application.

The First-tier Tribunal did not direct itself to the public interest in maintaining confidence in the requested information, resulting in it weighing only those interests in favour of disclosure. Further, it did not assess whether the interests in favour of disclosure amounted to an “exceptional case” (per LRT v Mayor of London), but rather based its decision on its finding that there was “a real public interest in both disclosing how universities are working with these arrangements for training PhD students and how UKRI/EPSRC evaluates the information”. As such, it applied the wrong test. I am satisfied that the First-tier Tribunal’s errors in appeal EA/2019/0139 were material in the sense that, had they not been made, the outcome of the appeal might well have been different. The appropriate disposal is therefore to exercise my discretion under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 to set the decision aside. I consider the First-tier Tribunal which, with its expert members, to be best placed to determine the matters in issue in the appeal and so exercise my discretion to remit the matter to the First-tier Tribunal rather than determining the matter for myself.

I therefore:

The decision of the First-tier Tribunal in EA/2018/0216 is confirmed. To the extent that UKRI has not yet disclosed information that the First-tier Tribunal ordered it to disclose in that appeal, it shall now disclose that information.

The decision of the First-tier Tribunal in EA/2019/0139 was made in material error of law. The appeal is remitted to the First-tier Tribunal for redetermination in accordance with the Directions above, which may be supplemented by further Directions by a tribunal judge, registrar or caseworker in the General Regulatory Chamber of the First-tier Tribunal.