Line to take - LTT93 - Test of confidence

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: Test of confidence
• Source: Information Tribunal
• Details: Sec of State for the Home Office / BUAV (25 April 2008); S / General Register Office (9 May 2007); Derry City Council / Belfast Telegraph (11 December 2006); Bluck / Epsom & St Helier University NHS Trust (17 September 2007); Higher Education Funding Council / Guardian News (13 January 2010)
• Related Lines to Take: LTT41, LTT94, LTT95, LTT96, LTT97, LTT98, LTT172
• Related Documents: Awareness Guidance 2, EA/2006/0030 (S), EA/2006/0014 (Derry), EA/2006/0090 (Bluck), EA/2007/0059 (BUAV - IT), [2008] EWHC 892 (QB) (BUAV - High Court), EA/2009/0036 (HEFCE)
• Contact: RM/HD
• Date: 07/04/2010
• Reference Policy: LTT93
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The traditional test of confidentiality involves determining whether information was obtained in confidence, and whether its disclosure would constitute an actionable breach of confidence. For the purposes of s41 a breach will always be actionable if:

• the information has the necessary quality of confidence;
• the information was imparted in circumstances importing an obligation of confidence; and
• there was an unauthorised use of the information to the detriment of the confider (the element of detriment is not always necessary).

This three stage test is taken from the case of Coco v Clarke.

However, an actionable breach is not just one that is arguable but one that would, on the balance of probabilities, succeed.

A breach will no longer be actionable when there is a defence in the public interest.

• In relation to personal matters the law of confidence has evolved in light of article 8 (right to privacy) of the Human Rights Act and the concepts of both the ‘quality of confidence ‘ and ‘detriment’ have been broadened.

Further Information

This LTT is the ‘gateway’ LTT on the subject of confidence and introduces the issues discussed in greater depth in other lines.

The issues to be determined under subsection (1) of s41 are:

• Was the information obtained by the public authority from a third party?; and
• Would the disclosure of that information constitute an actionable breach of confidence (otherwise than under FOIA)?

As was made clear by the Tribunal in the case of Bluck v the Information Commissioner & Epsom & St Helier University NHS Trust, the second question refers to the common law of confidence.

It was also agreed in that case that, “the significance of “otherwise than under FOIA” has no greater significance than specifying that a public authority cannot rely upon FOIA as a justification for disclosing confidential material, if to disclose it in other circumstances would give rise to an actionable breach of confidence.”

Whether or not a breach of confidence is actionable is itself dependent on a number of factors. The most commonly cited statement of the constituent elements of an ‘actionable breach’ is the judgment of Megarry J in Coco v A N Clark (Engineers) Limited [1968] FSR 415 (quoted in the above Tribunal case), which reads:

“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 [...] 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...” *

However in the Home Office v BUAV & the ICO the High Court described how the law of confidence had evolved in respect to information on personal matters. These changes, which were a response to the Human Rights Act, mean that even quite trivial information on personal matters, the disclosure of which may not be detrimental in terms of any tangible loss, can still be protected under the law of confidence.

All these issues are discussed in more detail in related LTTs. See LTT94 for further discussion of ‘necessary quality of confidence’, and LTT95 for ‘obligation of confidence. As the Tribunal discussed at length in Bluck, the element of detriment may not always, in fact, be required (see LTT97). Also see LTT172 for further details on the meaning of the term ‘actionable’ in s41 cases. A disclosure under the Act will constitute an unauthorised use of confidential information unless the confider has given their consent to its disclosure.

It is extremely important to take into account the fact that there is a defence of public interest to a claim of breach of confidence. This means that, as stated in the MoJ Guidance on s41 — and as submitted by the Commissioner in S v the Information Commissioner and the General Register Office, “Disclosure will not constitute an actionable breach of confidence if there is a public interest in disclosure which outweighs the public interest in keeping the information confidential.”

In the case of Derry City Council v the Information Commissioner (para 30) (and again in S), the Tribunal set out, in a broad restatement of Coco v Clark, the elements of an actionable breach. In terms of the public interest it then said, “If this part of the test [actionable breach] was satisfied: Would the Public Authority nevertheless have had a defence to a claim for breach of confidence7’

This should not be read to imply that the public interest defence to a claim for a breach of confidence is distinct from the question of whether or not the breach is actionable. The position is as set out in the MoJ guidance, and by the Tribunal in S — “Disclosure would be an actionable breach of that obligation unless a defence can be established,” (para 56, ICO emphasis) and in Deny — “... a defence of public interest exists and [...] we must decide whether its effect [...] would be that disclosure of the [...] information would not be “actionable”, even if all other elements of the tort of breach of confidence were in place.” (para 35, ICO emphasis). The public interest test is inherent to confidence. See LTT41 for further discussion on the public interest in relation to s41.

Other defences to a claim for a breach of confidence which have been successfully used include the defence that the information was already and independently known to the confidante before it was disclosed to them; the defence that since the information was confided it had entered the public domain; and the defence that disclosure was required by law or by a court order.

When dealing with cases involving the law of confidence it is not necessary to consider the issues under (b) above in any given order (despite what may be suggested by the articulation of the test of confidence in Derry and 5). The Tribunal, for example, has looked at s41 cases in various ways — in Bluck, for example, the question of the public interest is considered first. Neither is it necessary to consider each issue in equal depth. In some cases, whether the information was obtained from a third party will be clear-cut; in others the fact that information was imparted in circumstances importing an obligation of confidence will be equally straightforward.

(*) There are other approaches than that set out in Coco & Clark to the analysis of confidentiality and in Smart v ICO EA/2008/0063 the Tribunal commented that it “...should not be adopted as an exclusive statement of the test”. Although the Commissioners believes that Coco & Clark provides a useful tool when considering confidentiality and caseworkers should continue to use the tests it set out as the framework of our analysis of s41 in DN5, we should not present it as being the only test, introducing it as the test which the Commissioner considers appropriate in the case