Line to take - LTT95 - Obligation of confidence

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: Obligation of confidence
• Source: Information Tribunal
• Details: S / General Register Office (9 May 2007); Sec of State for Home Office / BUAV (25 April 2008); Higher Education Funding Council / Guardian News (13 January2010)
• Related Lines to Take: LTT41, LTT93, LTT94, LTT96, LTT97, LTT98, LTT160, LTT172
• Related Documents: EA/2006/0030 (S), EA/2007/0059 (BUAV - IT), [2008] EWHC 892 (QB) (BUAV - High Court), EA/2009/0036 (HEFCE)
• Contact: RM/HD
• Date: 07/04/2010
• Policy Reference: LTT95
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Information which is shared in public is not confidential because the circumstances in which it is provided do not give rise to an obligation of confidence. An obligation of confidence may be expressed explicitly or implicitly. If information is provided in circumstances that created an obligation of confidence, the circumstances in which any further information provided subsequently, connected to and arising out of the first provision, will also give rise to an implied obligation of confidence.

Further Information

Even if information might otherwise be regarded as confidential, a breach of confidence will not be actionable if it was not communicated in circumstances giving rise to an obligation of confidence. Information shared in public will therefore not be confidential.

Although there is no absolute test of what constitutes a circumstance giving rise to an obligation of confidence, the judge in Coco v Clark, suggests that the ‘reasonable person’ test may be a useful one — “If the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.”

An obligation of confidentiality may be expressed explicitly, or implicitly. Whether or not there is an implied obligation of confidence may depend on the nature of the information itself, and/or the relationship between the parties.

Where there is an explicit obligation of confidence this will not be undermined where a public authority confirms that it will treat the relevant information as confidential but goes onto refer to the fact that confidentiality is qualified by the authority’s obligations under FOI. The Tribunal in the case of the Higher Education Funding Council for England (HEFCE) & Guardian News and Media Ltd confirmed this by saying that they “... would certainly not accept that the HEFCE, by adopting the fair and responsible approach of making the extent of its legal obligations clear to those contributing (the information) had undermined the protection to which (the contributors) were entitled...” (para 19). However, the relevant limbs of the test of confidence must still be met and a simple confidentiality assurance will not be sufficient in itself to allow the public authority to avoid its FOI obligations.

Implied obligation of confidence

In the case of S v the ICO and the General Register Office (GRO), the Tribunal found that information provided in circumstances connected to or arising out of the provision of confidential information, will itself be confidential.

The requested information is this case was a letter from an individual who had registered a death (the Informant) sent in response to a letter from a registrar requesting clarification of her whereabouts at the time of death.

The Tribunal was clear that no specific undertaking of confidentiality was given in the registrar’s letter to the Informant, and that the disputed information itself (the reply from the Informant) was in no way marked as being provided on condition that it was kept confidential.

It was satisfied, however, that because the exchange of letters was an extension of the interview which took place at the registration of the death, and because the interview was confidential, so too was the letter from the informant. It concluded that “the nature of and circumstances in which the [requested] information was provided gave rise to an implied obligation of confidence” (para 55, ICO emphasis).

The information provided by the Informant in the interview was itself provided in circumstances which gave rise to an implied rather than an explicit obligation of confidence. In respect of the Informant’s understanding of the interview, the Tribunal concluded that she could expect any information provided to be kept in confidence because of, “the fact that the interview is conducted in private, the display of notices indicating that the statistical information provided in the same interview is confidential and the nature of the information being sought.” (para 54)

It should be noted that with the advent of the Human Rights Act the protection provided by the law of confidence has been extended to situations where there is no confider / confidant relationship, for example where journalists photograph private aspects of a celebrity’s life. Nevertheless courts still consider whether the party obtaining the information ought to have recognised that the information could be characterised as being private or confidential. This complication is unlikely to arise when applying s41 since it can only be claimed in relation to information obtained from a third party.