Line to take - LTT112 - The law of confidence & Human Rights Act 1998

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: The law of confidence & Human Rights Act 1998
• Source: High Court; Information Tribunal
• Details: Home Office / BUAV (April 08); Derry City Council / Belfast Telegraph (11 December 2006); Bluck / Epsom & St Helier University NHS Trust (Sept 07); McTeggart / Dept Culture Arts Leisure (4 June 07)
• Related Lines to Take: LTT93 (gateway LTT on confidence)
• Related Documents: BUAV [2008] EWHC 892 (QB), Bluck EA/2006/0090, Derry EA/2006/0014, McTeggart EA/2006/0084
• Contact: RM
• Date: 25/06/2008
• Policy Reference LTT112
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

As with all domestic law, the law of confidence has to be read in the context of the Human Rights Act 1998 (HRA). In relation to personal & private information i.e. information on personal matters, this will involve consideration of Article 8 — the right to privacy and Article 10 — the right to freedom of expression.

However in practice, in the context of section 41, this is not incompatible with the approach set out in Coco v Clark(*1). The importance to the right to privacy can be factored into;

• whether trivial information can be protected by the law of confidence when considering if the information has the necessary the quality of confidence,
• whether disclosure would have a detrimental impact on the confider and,
• this can then be balanced against the right to the freedom of expression when weighing up whether the public authority would have a public interest defence against breach of confidence.

Further Information

The purpose of this LTT is not to suggest that case officers should consider the application of s41 and the law of confidence purely in terms of balancing competing human rights. However following the decision of the High Court in Home Office v BUAV & ICO we need to recognise that following the introduction of the HRA, the law of confidence is now broader and can now protect information which would not previously have been considered confidential. At para 31 the court quoted Patten J from Murray v Express Newspapers Plc (2007) as saying;

“The incorporation of convention values in this branch of law widens the focus of the cause of action to include private information which would never have been regarded as confidential by a court in the days of ... Coco v AN Clark (Engineers) Ltd 1969...”

However the tests set down in Coco v Clark should not be abandoned as they can still provide a useful framework for analysing whether s41 is engaged. However when dealing with information on personal matters it will be necessary to double check that in applying the tests set by Coco v Clark we have incorporated the HRA approach.

It is conceivable that as case law develops it may become harder to adapt these tests but for now where the information is on personal matters, the Commissioner’s approach will be to address the developments triggered by HRA within these tests. Where the information does not relate to personal matters, it is not necessary to address the article 8 issues but please see the comments at the end of the LTT regarding article 10.

It was the Tribunal’s failure to address these developments which, according to the High Court in the BUAV case, lead it to proceed on an “... incomplete understanding of the present law...” (para 32) and which ultimately lead to the Tribunal’s decision being overturned. Since the traditional approach to confidentiality is stricter, i.e. it results in less information being deemed confidential, information found to be confidential under the traditional approach would still be confidential under an HRA approach. The real value in double checking that we have incorporated the HRA approach into the Coco v Clark tests is where the traditional approach results in a decision that s41 is not engaged.

Incorporating HRA into Coco v Clark

In very basic terms the tests set down in Coco v Clark are as follows;

• Does the information have the necessary quality of confidence, i.e. not widely known, not trivial,
• Was it imparted in circumstances that gave rise to an expectation of confidence,
• Would disclosure be detrimental

See LTT93 for a fuller explanation of these tests.

Triviality

In relation to the triviality of the information the High Court found at para 33 that;

“It is beyond question that some information, especially information in the context of personal matters, may be treated as private, even though it is quite trivial in nature and not such as to have about it any inherent “quality of confidence”.”

So it is clear that in relation to information on personal matters the quality of confidence has now expanded to include even trivial matters, see LTT94 for more details.

However it is important to recognise that triviality is only one aspect of the quality of confidence. The other is that the information is not widely known or in the public domain. This remains an essential ingredient for s41 to apply.

Detriment

Regarding the third test, i.e. that disclosure would be detrimental to the confider, even Coco v Clark acknowledged that the detriment was not always a prerequisite of an actionable breach. The issue was also considered by the Tribunal in the Bluck case, which dealt with access to information contained in a deceased person’s medical record. In broad terms the Tribunal found case law to support a view that, where the information is of a personal nature, it was not necessary to show that disclosure would be detrimental in terms of it being harmful in any positive way (see LTT97 and Bluck paras 7 - 9)

The Tribunal then went on to recognise that this approach now had to be read in the context of Article 8 of the HRA, Essentially article 8 identifies the importance to individuals to have the privacy of their affairs respected and so an invasion of privacy is sufficient for there to be an actionable breach of confidence. So in effect what constitutes a detrimental impact has been broadened to include an invasion of privacy, not that the Tribunal ever used such terminology.

Public interest

However there is a competing human right, Article 10, the right to freedom of expression, which includes the freedom to receive and impart information. The Tribunal cited the test of confidentiality for private information as set out in Ash v McKennitt (*2) comprising of two questions:

“First, is the information private in the sense that it is in principle protected by Article 8?... If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of the expression conferred on the publisher by Article 10” (Bluck para 10).

However it should be remembered that there has always been scope for this kind of balancing test when considering whether there is a public interest defence to a breach of confidence. The Tribunal referred to this traditional approach by quoting Lord Goff in AG v Guardian (*3) “...although the basis of the law’s protection of confidences is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some countervailing public interest which favours disclosure. ... It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure” (Bluck para 11). In the Deny case the Tribunal also cited Lord Justice Sedley in LRT v Mayor of London (*4) as expressing the hope that, in relation to the inbuilt public interest test; “the human rights highway leads to exactly the same outcome as the older road of equity and common law”. (Derry para 35g)

In the Derry case the Tribunal established that the public interest defence was the same as the public interest test set out in the Act except that if the weight of the public interest for & against disclosure was equal, the default position was reversed, i.e. the confidence is respected and the information is withheld. The Deny case related to commercial confidentiality. In the McTeggart case the information at issue was a report into allegations of bullying at work and the Tribunal took the same approach as in Derry by again treating the public interest defence as being similar to the public interest test under the Act. In McTeggart the Tribunal did not explicitly consider HRA but in Bluck it did analyse the issues within the context of the HRA to apply the same public interest balancing test in relation to personal information.

It should be recognised that although this LTT concentrates on confidences of a personal nature the right to freedom of expression provided by Article 10 would be a factor to be weighed when considering public interest defence to any breach of confidence.

Finally, although it may appear that courts are beginning to move away from, or at least broaden, the tests established by Coco & Clark in light of the HRA it should be remembered that the circumstances of many of those the cases was such that they could not be captured by s41. That is cases such Campbell V MGN Ltd (*5) involved journalists photographing aspects of a celebrity’s private life. As s41 requires information to be obtained from a third party, information obtained by a public authority itself through some form of surveillance would not fall within the scope of the exemption.

The High Court’s decision in Home Office v BUAV & ICO, on which this line is based, in part, has now gone to the Court of Appeal. Our line may be reviewed in light of the Court Appeal’s judgement.

(*1) Coco v AN Clark (Engineers) Limited [1968] FSR 415

(*2) Ash v McKennitt [2006] EWCA Civ 1714

(*3) Attorney General v Guardian Newspapers [1990] 1 AC1 09

(*4) London Regional Transport, London Underground Ltd v The mayor of London, Transport for London [2001] EWCA Civ 1491

(*5) Campbell v MGN Ltd [2004] 2 AC 457.