Decision 244/2025:  Funding from Chinese organisations

Authority: University of Dundee
Case Ref: 202500470
 

Summary

The Applicant asked the Authority for information about funding received from Chinese organisations over a specified period.  The Authority withheld the information because it considered it to be commercially sensitive.  The Commissioner did not accept that the Authority was entitled to withhold the information and required the information to be disclosed to the Applicant.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 33(1)(b) (Commercial interests and the economy); 47(1) and (2) (Application for decision by Commissioner); 50(1)(a) (Information notices).

Background

1. On 12 December 2024, the Applicant made a request for information to the Authority. He asked for:

   1. Details of any instances in the last five years where the Authority became aware of students facing alleged or proven monitoring, intimidation, or other ramifications due to their views on issues related to China, Taiwan, Tibet or Hong Kong, and how these were resolved

   2. Any funding received from Chinese companies, organisations, institutions or other entities over the last five years.  

2. The Authority responded on 4 February 2025.  In response to request (i) the Authority gave the Applicant notice, under section 17(1) of FOISA, that the information was not held and, in response to request (ii) the Authority withheld the information under section 33(1)(b) (Commercial interests and the economy) of FOISA.
3. On 3 March 2025, the Applicant wrote to the Authority requesting a review of its decision in relation to request (ii).  The Applicant stated that he was dissatisfied with the Authority’s response because he did not believe that the exemption in section 33(1)(b) had been correctly applied, and he argued that the public interest favoured disclosure.
4. The Authority notified the Applicant of the outcome of its review on 25 March 2025, which fully upheld its original decision.  
5. On 26 March 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant stated he was dissatisfied with the outcome of the Authority’s review because he believed the public interest lay in disclosure of the information and he did not consider that disclosure would impact the Authority’s commercial interests.

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 3 April 2025, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information and the case was allocated to an investigating officer.
8. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions.  These related to the Authority’s interpretation of the request, further details of exact amounts, and the substantial prejudice the Authority believed would result from disclosure of the information.

Commissioner’s analysis and findings

9. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Withheld information

10. The Authority initially provided the Commissioner with a “best estimate” of the overall funding received for the tax years 19/20 to 24/25 inclusive.
11. The Commissioner was not satisfied that this accurately reflected the information that the Applicant had requested, and he asked the Authority to provide him with a breakdown of the total sum to include the named source, the amount received and the date of receipt.  The Authority refused to provide the Commissioner with this information, arguing that it was commercially sensitive.
12. The Commissioner subsequently issued an Information Notice to the Authority under section 50(1)(a) of FOISA, which required the Authority to provide the Commissioner with the information which was the subject of the application. 

Section 38(1)(b) of FOISA

13. During the investigation, the Authority applied section 38(1)(b) (Personal information) of FOISA to some of the withheld information and provided the Commissioner with submissions on its application of this exemption.
14. The Applicant was asked for his views on the exemption in section 38(1)(b) of FOISA and indicated that he did not want to challenge the Authority’s use of this exemption . The Commissioner will not consider the Authority’s reliance on the exemption in section 38(1)(b) of FOISA, any further.

Section 33(1)(b) – Commercial interests and the economy 

15. Section 33(1)(b) of FOISA provides that information is exempt information if its disclosure would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority).  This exemption is subject to the public interest test in section 2(1)(b) of FOISA.
16. There are several elements a Scottish public authority needs to demonstrate are present when relying on this exemption.  It needs to establish: 

    1. whose commercial interests would (or would be likely to) be harmed by disclosure 

    2. the nature of those commercial interests, and 

    3. how those interests would (or would be likely to) be prejudiced substantially by disclosure. 

17. The prejudice must be substantial, in other words of real and demonstrable significance. Where the authority considers that the commercial interests of a third party would (or would be likely to) be harmed, it must make this clear.  Generally, while the final decision on disclosure will always be one for the authority, it will assist matters if the third party has been consulted on the elements referred to above. 

The Authority’s comments on section 33(1)(b)

18. In its submissions to the Commissioner, the Authority explained that it considered that its own commercial interests would be harmed by disclosure of the information.
19. The Authority argued that it operated in a competitive commercial marketplace and that disclosing the information would allow competitors to benchmark themselves against it to obtain a commercial advantage. It stated that disclosure of the information would also be in breach of contract.
20. The Authority submitted that the substantial prejudice was likely to be an action against it for breach of contract by a third party and the loss of commercial advantage by releasing business critical information into the public domain.  It argued that this substantial prejudice was likely to happen at any point following disclosure of the information.
21. Furthermore, the Authority confirmed that the risk of potential prejudice to itself and others was not lessened by the fact that other organisations had disclosed similar information about Chinese funding.

The Applicant’s comments on section 33(1)(b)

22. The Applicant did not agree that disclosing the funding information would impact the Authority’s commercial interests.
23. The Applicant submitted that another university had, initially, refused to provide the same information and it had relied on the same exemption to withhold the information. However, the Applicant stated that this university had subsequently changed its position in its review outcome.  He provided the Commissioner with details of the reasons provided by this university for its change of position, to support his view that the information in this case should also be disclosed. 

The Commissioner's view on section 33(1)(b)

24. The Commissioner has carefully considered all the arguments submitted by the Applicant and the Authority, along with the withheld information.
25. "Commercial interests" are not defined in FOISA, but the Commissioner’s guidance on the exemption in section 33(1)(b)[1] states that an organisation's commercial interests will usually relate to the commercial trading activity they undertake.
26. In order to rely on this exemption, an authority must also evidence why disclosure would, or would be likely to, substantially prejudice the commercial interests of any person (including its own commercial interests).
27. The Commissioner’s view is that there may be circumstances where an authority could make the case that disclosure of information about funding received by it from a particular source or sources would, or would be likely to, result in substantial prejudice.
28. However, the Commissioner does not consider that the Authority has successfully made this argument in relation to this appeal.  In his view, while the Authority’s submissions raise general points, they lack the necessary detail and they fail to draw a direct link between the particular information withheld in this case and the substantial prejudice which would result.
29. While the Authority has referenced substantial prejudice to its commercial interests, the Commissioner does not consider it has specified which particular interests would be prejudiced or evidenced how these interests would be impacted by disclosure.  
30. In coming to a view in this case, the Commissioner has also taken into account the withheld information provided.  While the Commissioner cannot reveal details of the withheld information, he considers it sufficiently general so as to make it unlikely that a third party would be able to benchmark it in such a way as to gain an advantage from it.   In other words, given the information and submissions received, the Commissioner cannot see how disclosure of the information would enable a competitor to undercut the Authority or otherwise hamper their commercial interests.
31. The Commissioner notes the Authority’s concerns about the risk of potential legal action for breach of contract, should the information be disclosed, however, that is not relevant to his consideration of section 33(1)(b).  There is another provision in FOISA that can be applied if an authority considers that disclosure would constitute an actionable breach of confidence, but the Authority has chosen not to apply that exemption in this case.
     
32. Taking account of the submissions received from the Authority in relation to the actual information being withheld in this case, the Commissioner does not believe he has any option but to find that the Authority has not evidenced the required substantial prejudice for section 33(1)(b) of FOISA to be engaged.  As noted above, he cannot see any way, based on the submissions provided by the Authority, that a competitor could gain any financial advantage from disclosure of the funding received by Chinese companies, organisations, institutions or other entities over the five years specified in the request.
33. The Commissioner would note that it is for the Authority to provide the required evidence of harm, not for him to go out and find it or make the case on behalf of the Authority.  Consequently, in this case, the Commissioner is not satisfied that the information requested was properly withheld under this exemption.  Having reached that conclusion, the Commissioner is not required to consider the public interest test in section 2(1)(b) of FOISA.
34. The Commissioner therefore requires the Authority to disclose the withheld information to the Applicant, by the date stated below.

Information to be disclosed

35. The Commissioner has interpreted the request as seeking any amounts paid to the Authority by any Chinese company, organisation, institution or other entities over the last five years, broken down as set out in paragraph 11 above.  He requires the Authority to disclose this information to the Applicant.

Decision 

The Commissioner finds that the Authority failed to comply with Part 1 (and, in particular, section 1(1)) of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant. 

The Commissioner finds that the Authority was not entitled to rely on the exemption in section 33(1)(b) of FOISA to withhold information from the Applicant. 

The Commissioner therefore requires the Authority to disclose the withheld information to the Applicant by 21 November 2025.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

Euan McCulloch 

Head of Enforcement 

7 October 2025