Given in Confidence
Freedom of information legislation protects information given in confidence, in most cases. There are exemptions specific to civil law and criminal law. Potential exemptions are provided for in the context of the public interest, in the civil law context. In addition to exemptions specific to particular categories of information, there were mandatory grounds and grounds on which refusal of disclosure is mandatory.
A head shall refuse a request if the record concerned contains information given to the public body in confidence and on the understanding that it will be treated as confidential, (including information that a person was required by law or could have been required by law to give to the body) and in the opinion of the head its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such similar information shall continue to be given.
There is a separate ground by which it is provided that the head shall refuse access to information, disclosure of which would constitute a breach of a duty of confidence provided for by an agreement or legislation other than certain exempted legislation or otherwise by law.
The above provisions do not apply to records which are prepared by a head or other person or member of staff of, a public body or service provider to a public body in the course of performance of its functions or duties unless the disclosure will constitute a breach of duty of confidence, that is provided for by the agreement or statute and is owed to the person, other than the public body or its directors, employees or service providers.
The first grounds of exemption in respect of information given in confidence, shall not apply in a case where, in the opinion of the head, the public interest will on balance, be served better by granting than by refusing the request.
Concepts of Confidentiality
This section borrows certain concepts from existing principles of confidentiality. However, it appears to provide for a standalone legislative framework in the context of disclosure of public information. The various defences and principles applicable and the equitable duty of confidence will not necessarily apply.
The traditional principles in relation to the nature of confidential information are likely to be considered. Some information of its nature, may be patently confidential whereas other information is clearly expressed or implied, as given in confidence.
There is express grounds of exemption on the basis that the information is given in confidence and on the understanding that it will be treated as confidential, even if it is not inherently so but would be categorised as confidential information in other contexts. This includes information that could have been required by law under statutory power or was in fact acquired compulsorily by the use of a power.
Where there is a duty of confidentiality, expressly provided for in an agreement, the general public interest balancing grounds do not apply. It would appear that the confidentiality clause may not simply be inserted unless the information is confidential in character.
Similarly, duties of confidentiality implied by the other laws and enactments are not subject to the public interest disclosure, apart from statutory provisions listed in the schedule to the legislation. Public interest grounds do not apply to duties of confidence otherwise required by law. This appears to apply to express, implied or equitable confidentiality imposed by law without an agreement. They arise in fiduciary and quasi-fiduciary positions and in relation to information that is inherently confidential such as trade secrets insofar as they are not covered by other exemptions.
A duty of confidentiality may arise out of a relationship based on mutual trust and understanding. It may arise where information is given for a particular purpose on basis such that it can be used for this purpose only.
Public Interest Disclosure
The public interest exception applies to the first category of case but not the latter category of case where there is a confidentiality agreement or requirement of confidence by law. The equitable concept of confidentiality itself contemplates a public interest exemption so that there may be a certain overlap. The exception would appear to be limited to crime abroad, dangers to the public and be relatively narrow in scope.
Where the head proposes to disclose information received in confidence on public interest grounds, he or she must consult with the person who furnished the information and if he considers appropriate, persons to whom the information relates, informing him that the request for disclosure may be granted or proposed to be granted in the public interest. A person concerned has a number of weeks in which to make submissions. They must be taken into account before the request is granted. Time limits apply.
Persons notified must be given a notice of right to appeal the decision. Appeals must be taken within two weeks of notification to the Information Commissioner. Submissions may be made to the Commissioner by each party.
If the head cannot comply with the obligations in relation to consultations by taking reasonable efforts to do so, he or she may go ahead and proceed to grant or refuse the request with the consent of the Information Commissioner. If the Information Commissioner does not consent, the Commissioner must direct the head in relation to compliance with the consultation obligation.
The burden of proving grounds for the refusal of disclosure lies on the person who objects to disclosure.
A head shall refuse to grant a request for disclosure of information if
- the record contains trade secrets of a person other than the person making the request;
- it contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his profession, business or occupation or
- information whose disclosure could prejudice the conduct or outcome of any contractual or other negotiations of the person to whom the information relates.
A head shall grant a request in relation to the above if:
- the person to whom the record relates consents in writing or in some other form as may be determined;
- information of the same kind as that contained in respect of persons generally or a class of persons that is, having regard to all the circumstances of significant size. is available to the general public;
- the record relates only to the requester;
- the information contained in the record was given to the public body concerned by the person to whom it relates; that person was informed on behalf of the body before it was given that the information belongs to a class of information that might, would be or might be available to the general public or
- disclosure of the information concerned is necessary to avoid a serious and imminent danger to the life or health of an individual or the environment.
The provisions do not apply in relation to cases where in the opinion of the head concerned, the public interest would on balance be better served by granting than by refusing the request.
The concept of trade secrets has evolved in the context of breach of confidence in equity. Generally, a trade secret, formula, pattern, or other specific information that gives traders an advantage over other traders in the conduct of their business may be protected. It will typically involve a commercial secret.
There are differences of opinion in relation to the breadth of the concept. In the context of freedom of information legislation, information falling outside the category of a trade secret may fall within one of the other protected categories above and below relating to confidential information and commercially sensitive information.
A protectable trade secret in the general sense has an economic value because it is not generally known and can be exploited. It is usually subject to efforts and investment to learn or evolve and steps are usually taken to protect it. It is generally of value to the holder and is proprietary in nature.
Other commercially sensitive information is protected notwithstanding that it is not a trade secret as such. This exemption covers financial, commercial, scientific and technical information. It encompasses knowhow and a range of quasi-proprietary information, techniques, methods, and commercial information.
Commercial information is information relating to the conduct of trade of a business. Financial information generally refers to data and information on financial, pricing matters, costs and pricing practices. The issue may arise in the context of tenders, budgets and pricing.
Most tenders are the subject of separate EU legislation, requiring disclosure of certain details of the successful tenderer and details of the reason for the rejection of the applicant’s tender.
Scientific information refers to information organised in an organised field of knowledge, generally ut of the natural, biological or social sciences or maths. It must involve observation and testing of hypotheses and conclusions undertaken by experts in the area concerned.
Financial & Commercial Interests
In the case of financial, commercial, scientific. technical or other such information, it is exempt (in contrast to the position with trade secrets). It is exempt from disclosure if it could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his profession, trade, business or occupation or in the contractual negotiations to which the information relates.
This exemption seeks not to prejudice the interest of businesses, which deal with public bodies. In its absence, the release of information to their competitors may damage their business. Similarly, information concerning contractual or other negotiations is exempted.
There are exceptions to the exemption;
- consent in writing or such other form as may be determined will allow disclosure.
- information that is publicly available and has been published elsewhere:
- where the record relates only to the person who makes the request;
- where the person has been informed that there may be disclosure;
- where disclosure is necessary to avoid the danger to health, life or the environment. It must be a serious and imminent danger.
Subject to public consultation procedures, the head of the public body if he is of the opinion that the public interest and balance would be better served by granting them by refusing the request, may release information. The consultation procedures set out above apply.