Line to take - LTT94 - Necessary quality of confidence

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: Necessary quality of confidence
• Source: Information Tribunal
• Details: S / General Register Office (9 May 2007); Sec of State for Home Office / BUAV (25 April 2008)
• Related Lines to Take: LTT41, LTT93, LTT95, LTT96, LTT97, LTT98
• Related Documents: EA/2006/0030 (S), EA/2007/0059 (BUAV - IT), [2008] EWHC 892 (QB) (BUAV - High Court)
• Contact: RM
• Date: 21/07/2008
• Policy Reference: LTT94
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Information will have the necessary quality of confidence if it is not otherwise accessible, and if it is more than trivial. Information which is known only to a limited number of individuals will not be regarded as being generally accessible, though will be if it has been disseminated to the general public. Information which is of importance to the confider should not be considered trivial

Further Information

As part of the test of confidence, the issue of whether or not the disclosure of information would constitute an actionable breach of confidence needs to be considered (see LTT93).

The first question to be determined here is whether the information has the necessary quality of confidence.

Information in the public domain

Information will not have the necessary quality of confidence if it is already in the public domain. This was articulated clearly Coco v Clark by Megarry J, who stated that, “However confidential the circumstances of communication, there can be no breach of confidence in revealing something to others which is already common knowledge.”

In the case of S v the Information Commissioner and the General Register Office, the complainant argued that because some aspects of the information requested in that case were known to some people (including the complainant and her family), it no longer retained the necessary quality of confidence.

The Tribunal dismissed this argument. It acknowledged that the information may indeed be known to the complainant and her family, and parts of it may be known to others, but drew a distinction between this and information disseminated to the general public. It stated, “Whether the information is in the public domain is a matter of degree.” (para 42)

In considering whether the breach of confidence may be actionable, the Tribunal developed the point above, and asked whether information already known to someone independently would have lost its quality of confidence. It concluded, “information in the public domain loses the quality of confidentiality but dissemination to a limited number of people does not stop information from being considered to be confidential.” (para 78)

There are other examples of where information may have been disseminated to a limited audience and yet still retains its quality of confidence. For instance, where information is assembled and communicated to recipients subject to an agreement or understanding that it is for their use alone. Also information may be considered confidential even if all the component items are otherwise available to the public but others would have to spend time or effort in producing them in the form in which they are communicated.(This issue is considered in more detail in DN ref 123005) Where information is published only in part, confidence will still protect the undisclosed parts of the information.

Triviality

It is generally accepted that, as the law should not concern itself with trivialities, information which is trivial will not have the necessary quality of confidence.

The complainant in the case of S argued that the information requested in that case was, as well as being otherwise accessible, trivial, but the Tribunal rejected this. From the evidence available, it was satisfied that the person who had provided the information had attached a great deal of emotional significance to it and would suffer distress if it was disclosed. It was therefore satisfied that in the opinion of the confider the information was clearly worthy of protection.

In conclusion, and in general terms then, “Information cannot be said to be trivial if it is of importance to the person whose privacy has been infringed.” (para 36).

If a case officer is in doubt as to whether or not the information in question is trivial, they should seek the advice of the lawyers.

Although not playing a part in its deliberations, the Tribunal also raised Article 8 (the right to a family life) as a factor it would have been obliged to consider if it was not already satisfied that the disputed information was not trivial. This may also be relevant in considering the public interest in maintaining confidence (see LTT96).

In the Home Office v BUAV & ICO [2008] EWHC 892 (QB) the High Court considering whether requested information constituted confidential information for the purposes of applying a statutory bar and described how the traditional breach of confidence had broadened into what it characterised as the “misuse of private information”. It concluded at para 33 that it was, “... beyond question that some information, 'especially 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” (emphasis added). This approach led the court to reject arguments that “one cannot give ‘in confidence’ information which does not have the quality of confidence about it”. (para 34)

It is clear that this approach to the question of triviality is not restricted just to information on personal matters. However it is the Commissioner’s view is that, for the purposes of applying s41, we should continue to take the approach that for an unauthorised disclosure to constitute a breach of confidence the information should still have the necessary quality of confidence, including being more than trivial, except, that is, in the case of information on personal matters. Where the information is on personal matters it may still be protected by the law of confidence even if, on the face of it, it seems trivial so long as the confider considers it to be of importance.