Ruling (Application for disclosure)

Neutral citation:

[2009] CAT 37


29 Dec 2009



Ruling on the application by the Appellant for disclosure of the model created by OFCOM during the course of their review of the charge controls imposed on Openreach in relation to unbundled local loops and related services. The Appellant applied for disclosure of the model to Mr Andrew Heaney, the Executive Director, Strategy and Regulation at TalkTalk Group. The model is based on, and incorporates, a large amount of information provided to OFCOM by British Telecommunications plc (“BT”). The application for disclosure was opposed by BT.

The Tribunal considered two main questions: (i) whether the information in the relevant parts of the model (in connection with which disclosure was sought by the Appellant) is confidential; (ii) whether the information should be disclosed to Mr Heaney.

On the first question of confidentiality, the Tribunal concluded that the relevant parts of the OFCOM model contain confidential and commercially sensitive information which must normally be protected from disclosure. The Tribunal noted that the interest in protecting this information from disclosure is not simply the commercial interest of BT, but also a wider public interest in the maintenance of the competitive process which requires that detailed information about the breakdown of a company’s costs, the volumes supplied, its profit and loss forecasts and other forecasts for its business over coming years is not disclosed to its actual or potential competitors.

On the second question of whether the information should be disclosed to Mr Heaney, the Tribunal held that the Appellant needed to show good reason why Mr Heaney needs to see this information. Ultimately, it is for the Tribunal to balance the Appellant’s need to be able properly to conduct its appeal against the need to protect confidential information in the particular context of these proceedings. The Tribunal held that the Appellant had not put forward any convincing reasons why it could not properly conduct its case without Mr Heaney seeing this information. The Tribunal therefore unanimously dismissed the application.

This is an unofficial summary prepared by the Registry of the Competition Appeal Tribunal.