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Ramsgate Sands in 1854
Artist William Frith |
In his preface to the white paper
Your Right to Know (Cm 3818), the then Prime Minister, Tony Blair, introduced his government's proposals for a Freedom of Information Bill as one of several important constitutional reforms. Others included the Human Rights Bill, devolution statutes for Scotland and Wales and the
Data Protection Act 1998. The government's intention was to redefine its relationship with the governed.
S.1 (1) of the Freedom of Information Act 2000 states that:
"Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him."
However, those rights are subject to several exceptions pursuant to s.1 (2) and s.2 (1), (2) and (3) (g) of the Act. One of those exceptions is s.41:
"(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."
In
Higher Education Funding Council for England v Information Commissioner and another (unreported, 13 Jan 2010). the Information Tribunal held that a public authority seeking to rely on that exception would have to show that the disclosure would be likely to give rise to a successful action for breach of confidence:
“Our conclusion on this part of the case, therefore, is that the HEFCE must establish that disclosure would expose it to the risk of a breach of confidence claim which, on a balance of probabilities, would succeed. This includes considering whether the public authority would have a defence to the claim. Establishing that such a claim would be arguable is not sufficient to bring the exemption into play.”
An example of such a claim was Driver v Information Commissioner and another [2021] UKFTT 2017_0218 (GRC).
The information in question was the identity of certain claimants and the amounts paid to each of them in an out of court settlement with a local authority that had banned the transport of live animals through its port in contravention of EU law. Those claimants had successfully challenged the ban in the Chancery Division on the grounds that it breached art 35 of the Treaty on the Functioning of the European Union. They subsequently claimed damages for losses occasioned by the ban.
A local resident who had opposed live animal exports asked the authority for the above information under s.1 (1) of the Freedom of Information Act 2000. The authority declined on the ground that disclosure of that information would be an actionable breach of confidence. The resident asked the Information Commissioner to intervene. The Commissioner sided with the local authority. The resident appealed successfully against the Commissioner's decision to the General Regulatory Tribunal. The Tribunal held that s.41 did not apply because the withheld information had not been obtained by the local authority (see Driver v Information Commissioner and another [2017] UKFTT 2017_0040 (GRC)). The Information Commissioner appealed to the Upper Tribunal which allowed the appeal and remitted the case to a differently constituted first instance tribunal (see Information Commissioner v Driver and another [2020] UKUT 333 (AAC)). The Upper Tribunal directed the new tribunal to proceed on the basis that the threshold condition in s.41 (1) (a) of the Act had been satisfied. That is to say, the claimants’ names constituted information obtained by the public authority from another person.
In the remitted proceedings the tribunal took as its starting point the following passage from the judgment of Mr Justice Megarry (as he then was) in Coco v A N Clark (Engineers)
Ltd [1968] FSR 415:
"In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it. I must briefly examine each of these requirements in turn."
The tribunal was satisfied that the information in question was passed to the local authority in the course of negotiations for compensation. The object of those negotiations was to achieve an out of court settlement. At para [33] of its decision it said:
"There are good reasons of public policy why such negotiations are conducted with an expectation of confidentiality, not least of which is to encourage parties to settle disputes without the need to go to court. These negotiations were, we accept, carried out on a without prejudice basis. That, in turn, prevents the parties from revealing later what was discussed. The corollary of that is to impose a duty of confidentiality as, otherwise, the basis of without prejudice communications would be undermined. We find that is so irrespective of the fact that there was no express agreement to keep matters confidential; that was not necessary given the nature of the negotiations."
The resident had submitted that the information was not confidential because the identities of the claimants were well known. They may have been witnesses in previous litigation. Their names, photographs and videos had been circulated over the internet. That was true but what that evidence did not do was "identify with any certainty any entity, real or corporate, as having been in receipt of compensation or, importantly, the amount paid to each." Accordingly, the confidential nature of the information had been retained and the obligation of confidence had not been waived. The tribunal was satisfied that the
information had "the necessary quality of confidence about it" and had been "transmitted in circumstances importing an obligation of confidence."
Turning to the question of detriment, the tribunal said at [42]:
"We consider that there is a detriment in the disclosure of withheld material in that the material was supplied on the basis that it was to be kept confidential. The parties clearly proceeded on that basis. The fact that they had done so, and had suffered loss, is something that they wished not to be known."
The tribunal reminded itself that its role was to consider only if it was more likely than not that a court would find a breach of confidence. Given the particular circumstances in which the information had been imparted and the relationship of trust that that would have been created, the disclosure of the information to the resident would have met the detriment requirement.
The tribunal acknowledged that there are circumstances in which the public interest outeights the obligation of confidence. In this case, there was a significant weight to be attached to the public interest in keeping confidential negotiations undertaken on a without prejudice basis. All the parties who had entered into those negotiations did so on the assumption that they would be kept confidential. It was an assumption they were rightly entitled to hold. The tribunal accepted that the public was entitled to know how its money was spent and to whom, but the amount of the settlement and the reason for entering it was already in the public domain. There was no need to disclose more. The tribunal concluded at [51] that the withheld material was exempted
information by operation of s.41.
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