FOIA Section 41 Exemption

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Section 41: Information Provided In Confidence

Section 41 applies to information that has been obtained from another person and whose disclosure to the public would constitute an actionable breach of confidence.

Key points:

  • Section 41 will only apply where a person would be able to bring a successful action for breach of confidence as a result of disclosure to the public;
  • Section 41 is not subject to a public interest balance imposed by the FOI Act. But, the courts have recognised that a person will not be successful in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence;
  • The application of section 41 may require detailed consideration of the law of breach of confidence: expert advice will often be necessary.

Official DCA guidance:

What the law says

41 Information provided in confidence

(1) Information is exempt information if—
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the 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.
(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence

Decision Notices