Line to take - LTT41 - Public interest in confidence
- FOI/EIR: FOI
- Section/Regulation: [[LTT Exemption::FOI 41|s41]
- Issue: Public interest in confidence
- Source: Information Tribunal; ICO view from GS
- Details: Derry City Council / Belfast Telegraph (11 December 2006)
- Related Lines to Take: LTT40, LTT93, LTT94, LTT95, LTT96, LTT97, LTT98
- Related Documents: FS50066753, EA/2006/0014, Awareness Guidance 2, e-mail [Redacted name] to FOI 13/12/2006
- Contact: LA
- Date: 21/02/2008
- Policy Reference: LTT41
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The public interest test in deciding if a duty of confidence is actionable is the reverse of that normally applied under the FOIA
As the exemption for information provided in confidence is an absolute exemption there is no public interest test to be applied under the Act. However, in deciding whether the exemption applies it is necessary to consider whether an actionable breach of confidence would occur. Case law on the common law concept of confidence suggests that a breach of confidence will not be actionable in circumstances where a public authority can rely on a public interest defence.
Prior to Derry City Council v The Information Commissioner it was generally understood that for there to be a successful public interest defence against a breach of confidence, there would have to be an exceptional public interest in disclosure, usually revealing some wrong doing or preventing some public harm *1.
In Derry the Tribunal interpreted a Court of Appeal decision (London Regional Transport v The Mayor of London).
In the LRT case the judge at first instance said an exceptional case had to be shown to justify a disclosure which would otherwise breach a contractual obligation of confidence. The Court of Appeal did not expressly overturn this view but left the question open. Its final decision was to allow the disclosure in that case.
The Tribunal interpreted this as meaning
- No exceptional case has to be made to override the duty of confidence that would otherwise exist.
- All that is required is a balancing of the public interest in putting the information into the public domain and the public interest in maintaining the confidence.
The public interest test in deciding if a duty of confidence is actionable is the reverse of that normally applied under the FOIA, i.e.:
The FOI public interest test for qualified exemptions assumes that information should be disclosed unless the public interest in maintaining the exemption exceeds the public interest in disclosure.
The duty of confidence public interest test assumes that information should be withheld unless the public interest in disclosure exceeds the public interest in maintaining the confidence. This is the test which will apply in all s41 cases.
The Derry case was considered in the context of commercial confidentiality and the Tribunal identified a particular circumstance in which, in its view, the public interest in maintaining a confidence could be set aside. This should not be taken to mean that this will always be the case for commercial confidentiality.. The view of the ICO is that an express obligation of confidence should not be overridden on public interest grounds lightly and that a balancing test based on the individual circumstances of the case will always be required. Public interest factors in favour of disclosure should always be clearly stated.
For further discussion on the public interest factors in favour of maintaining confidentiality and on information provided by individuals see LTT96.
(*) The Derry case includes a useful summary of how case law has developed the scope of the public interest defence at para 35.