Line to take - LTT134 - Realistic expectation of confidentiality under s27(2) and (3)
- FOI/EIR: FOI, EIR
- Section/Regulation: s27(2), s27(3), reg 12(5)(a)
- Issue: Realistic expectation of confidentiality under s27(2) and (3)
- Source: Information Tribunal
- Details: CAAT/MOD (26 August 2008); Derry City Council / Belfast Telegraph (11 December 2006)
- Related Lines to Take: LTT109
- Related Documents: EA/2006/0040 (CAAT), EA/2006/0014 (Derry)
- Contact: GF
- Date: 10/11/2008
- Policy Reference: LTT134
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
When considering a realistic expectation of confidentiality under s27(2) and (3), the test is what would be reasonable in the mind of the confider, taking into account their culture and traditions and the lack of an internationally uniform concept of confidentiality.
There is a public interest in not flouting international confidence which is recognised in the Act at s27(2) and (3).
In the recent case of Campaign Against the Arms Trade (CAAT) v the Information Commissioner and Ministry of Defence, where the appellant had requested certain Memoranda of Understanding (MoU) between the UK Government and the Kingdom of Saudi Arabia (KSA), the Tribunal commented on confidentiality under s27(2) and (3).
Reasonable expectation of confidentiality — what would be reasonable in the mind of the confider
Section 27(3) states:
- “For the purposes of this section, any information obtained from a State, organisation or court is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State, organisation or court to expect that it will be so held”.
In the CAAT case, the Tribunal agreed with the parties’ common position that Section 27(3) provides a definition of the confidential information for 27(2), and said that the second part of the subsection (the circumstances in which the information was obtained) was particularly relevant (paragraph 66). It found that the test of confidentiality under section 27 should be judged against “what would have been reasonable for the KSA to have expected” (paragraph 75). The Tribunal took into consideration “the attitude of the KSA to defence or supply of arms” (paragraph 66) and the state’s particular characteristics, including “the secretive nature of its society” and the fact the “concept of freedom of information and transparency is generally alien to their culture” (paragraph 76). It concluded that the circumstances in which the information was obtained “made it reasonable for the KSA to expect that they would continue to be so held, at least in the absence of consent to release from the KSA” (paragraph 67).
The Tribunal said that there is no justification in “imposing on the KSA our particular customs and principles as to transparency or democratic accountability”. They did not accept the appellant’s argument that the conclusion would allow the culture and regime in the KSA to trump the FOI Act, particularly giving regard to the fact the argument in maintaining the exemption remains subject to the public interest balance in accordance with Section 2(2) of the Act (paragraph 78).
The Tribunal were also clear about the distinction of the confidentiality test under s27 from the common law of confidence applied in s41 (paragraph 57). In light of the above, the Commissioner’s view is that the principles in the common law of confidence under s41 should not be applied to the exemption under s27 due to the international context. The concept of confidentiality is naturally subject to different interpretations in different countries and therefore, it would be unrealistic to expect a common understanding. Therefore, bearing this in mind, as the Tribunal conclude in paragraph 75, it would be rational to judge the test of confidentiality against what would have been reasonable in the mind of the confider, taking into consideration their cultures, principles and possible lack of awareness about the FOI Act processes operational in the UK.
Consequently, when considering a realistic expectation of confidentiality under s27(2) and (3), the test is what would be reasonable in the mind of the confider, taking into account their culture and traditions and the lack of an internationally uniform concept of confidentiality.
Public interest inherent in 27(2) and (3)
In considering the PIT under s27(2) and (3), the Tribunal commented that it accepts that Parliament recognised that the Act, by virtue of the provisions in s27, assumes an “inherent disservice to the public interest in flouting international confidence” (paragraph 95).
The exemption under s27(2) and (3) is based on the implicit existence of confidentiality between states; the disclosure of the material in this case “would have been seen as reneging on or flouting the basis upon which that information was obtained” paragraph 95). The Tribunal applied significant weight to this in the context of international comity (*) and relationships, and were clear that the public interest in maintaining the confidentiality and ultimately, relations with the KSA outweighed the public interest in disclosing the information.
(*) comity – courteous recognition accorded by one nation to the laws and institutions of another