The Information Commissioner has conceded a First-tier Tribunal appeal by Ofqual and agreed that event notifications submitted by exam boards about errors in braille versions of GCSE and A level papers can be withheld under section 31(1)(g) of the Freedom of Information Act 2000, reversing a decision notice in which he had rejected the exemption and ordered disclosure.
In Office of Qualifications and Examinations Regulation v The Information Commissioner [2026] UKFTT 1304 (GRC), Judge Harris approved a consent order under rule 37(1) of the tribunal's procedure rules allowing the appeal against Decision Notice IC-441221-H8S8 of 21 April 2026 and substituting a notice finding that section 31(1)(g), read with section 31(2)(c), is engaged and that the public interest favours maintaining the exemption. Ofqual is not required to take any further steps and there was no order as to costs.
The request, made in December 2024, sought the event notifications two awarding organisations had submitted to Ofqual about substantial errors in braille versions of GCSE geography, physics, biology and chemistry papers and A level biology papers from the summer 2024 exam series.
The requester asked for the notifications' account of the nature and potential impact of each incident, the proposed mitigation to protect students, and the awarding organisation's analysis of causes and how it would prevent recurrence. The exam boards are not named in the published decision notice.
Ofqual initially refused to confirm or deny holding the information under section 31(3). The Commissioner rejected that position in a first decision notice in May 2025, after which Ofqual confirmed it held the notifications and relied on section 43 (commercial interests) and section 31(1)(g), adding section 41 (information provided in confidence) at internal review.
Section 31(1)(g) exempts information whose disclosure would, or would be likely to, prejudice the exercise by a public authority of its functions for the purposes in section 31(2), which include ascertaining whether circumstances exist or may arise that would justify regulatory action under any enactment. It is a qualified exemption subject to the public interest test, and the authority must show a causal link between disclosure and prejudice that is real and of substance rather than hypothetical.
Ofqual's case before the Commissioner was that although the General Conditions of Recognition require awarding organisations to submit event notifications where specified criteria are met, in practice they take a more expansive approach and volunteer reports of assessment material errors from the most minor to the most serious, which Ofqual encourages.
Disclosure would make them more cautious, reducing the flow of information on which its monitoring and enforcement functions under the Apprenticeships, Skills, Children and Learning Act 2009 depend. It also said it was actively monitoring the development and delivery of modified papers, had not yet decided whether investigation or enforcement was needed, and should be able to consider that without being drawn into premature public debate.
The complainant argued that Ofqual was strengthening its guidance so that from December 2025 exam boards would have to provide information it was likely to want even if unaware of its existence, mitigating any chilling effect, and that the notifications concerned completed exam series rather than Ofqual's ongoing review of how braille papers are produced.
In the April 2026 notice the Commissioner accepted that Ofqual's functions and the harm it identified fell within section 31(2)(c) but found no adequate explanation of why disclosure would deter awarding organisations from reporting. He noted that notifications are in essence mandatory for issues that would have an adverse effect on learners, that the requested material concerned a 2024 exam series rather than a live issue, and that an increase in public interest or correspondence does not of itself amount to prejudice.
Ofqual had not explained why disclosure under FOIA would be likely to lead to non-compliance with regulatory reporting conditions. He also rejected section 43, finding the commercial prejudice arguments rested on generalised assertions of sensitivity and speculative harms, and section 41, finding that while the notifications had the quality of confidence and were supplied in circumstances importing an obligation of confidence, Ofqual had identified no specific detriment sufficient to found an actionable breach.
On appeal, according to the statement of reasons annexed to the consent order, Ofqual produced further evidence of the types of information voluntarily provided to it, the benefit of that information to its functions, and the prejudice to that flow of voluntary information that would be likely to arise from disclosure. The Commissioner reviewed that evidence and accepted that section 31(1)(g) was engaged and that the public interest in maintaining the exemption outweighed the public interest in disclosure. The consent order does not address sections 41 or 43.
