Line to take - LTT96 - Public interest in favour of maintaining a confidence

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: Public interest in favour of maintaining a confidence
• Source: Information Tribunal
• Details: Bluck / Epsom & St Helier University NHS Trust (17 September 2007); Derry City Council / Belfast Telegraph (11 December 2006); McTeggart / Dept of Culture, Arts & Leisure (4 June 2007); Sec of State for the Home Office / BUAV (25 April 2008)
• Related Lines to Take: LTT41, LTT93, LTT94, LTT95, LTT97, LTT98
• Related Documents: EA/2006/0090 (Bluck), EA/2006/0014 (Derry), EA/2006/0084 (McTeggart), EA/2007/0059 (BUAV - IT). [2008] EWHC 892 (QB) (BUAV - High Court)
• Contact: RM
• Date: 21/07/2008
• Policy Reference: LTT96
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

In weighing up the public interest arguments in favour of upholding an obligation of confidence, consideration should be given to the wider public interest in preserving the principle of confidentiality and the impact that disclosure would have on the interests of the confider. The weight of the consideration will depend on the context, particular weight should be given where the obligation touches on the rights of individuals.

Further Information

Although s41 is an absolute exemption the law of confidence does contain its own inbuilt public interest test in that one defence to an action for breach of confidence is that the disclosure is in the public interest. This LTT discusses the factors that may be taken in to consideration for maintaining a confidence when conducting that inbuilt public interest test.

It is important to fully appreciate the consequences of disclosing confidential information in order to properly weigh the public interest in preserving the confidence against the public interest in disclosure.

In applying the approach taken in the Derry case, the Commissioner’s view is that a duty of confidence should not be overridden lightly, particularly in the context of a duty of confidence owed to an individual. For further information on the Derry case see LTT41.

The wider public interest in preserving the principle of confidentiality

The consequence of any disclosure of confidential information will be, to some degree, to undermine the principle of confidentiality which is really to do with the relationship of trust between confider and confidant. People would be discouraged from confiding in public authorities if they did not have a degree of certainty that such confidences would be respected. In the Bluck case the Tribunal quoted from Attorney General v Guardian

“…as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence...”

However this did not prevent Tribunal from going on to reject a comparison drawn between the weight given to the public interest inherent in LPP (see LTT15) and that in confidentiality. Therefore we need to be cautious of placing too much reliance on simple arguments that there is an ‘inherent’ public interest in confidentiality (Bluck para 19).

It would be better to identify in more detail how the relationship of trust, protected by the duty of confidence, operates to serve the public interest. For example in Bluck the public authority’s witnesses emphasised the need for patients to have confidence that doctors will not disclose sensitive medical data before they divulge full details of their medical history and lifestyle. Without that assurance patients may be deterred from seeking advice and without adequate information doctors cannot properly diagnose or treat patients (para 19). This is counter to the public interest as it could endanger the health of patients or, in the case of transmissible diseases, the wider community (para 26).

Another example would be where a regulator claimed that unless it could assure confidences would be respected it would not receive tip offs from members of the public about potential wrongdoing. In a recent DN (ref 152888) the public authority, Companies House, argued that unless it could receive confidential information alleging breaches of the Companies Act its ability to police that Act would be hindered, effectively reducing the safeguards created by that legislation and this would work against the public interest.

There is a public interest in maintaining trust and preserving this free flow of information to the public authority where this is necessary for the public authority to perform its functions in the public interest.

The interests of the confider

In some cases identifying the interests of the confider will be fairly straight forward, for example the Derry case (*1) concerned commercial confidentiality and the test focussed on whether the public interest in disclosure outweighed any harm to the commercial interests of the confider.

However many of our cases deal with information confided by private individuals acting in a personal capacity, e.g. information provided by an informant (complaining to a local council about some action of his neighbour), medical records, including those of the deceased, and so on. (*2)

The importance of a right to privacy is recognised by the Article 8 of the Human Rights Act 1998 which provides that “Everyone has a right to respect for his private and family life, his home and his correspondence.” The courts are obliged to interpret domestic law, including the law of confidence, in a way that respects this right to privacy and so Article 8 considerations are taken into account when determining whether information is confidential and are weighed against factors favouring disclosure when considering whether there would be a public interest defence against a breach of confidence. (also see LTT112 on law of confidence and the HRA that highlights the need to consider article 8 and also the competing right under article 10 - the right to freedom of expression)

In short the real consequence of disclosing private, personal information is an infringement of the confider’s privacy and there is a public interest in protecting the privacy of individuals.

Clearly there is a link between the impact disclosure would have on the confider and the wider public interest arguments discussed above; concern that information could be made public to the detriment of the confider, whether this is a tangible loss or an invasion of privacy, deters someone from providing information to the public authority which ultimately works against the public good by hampering the public authority in the performance of its functions.

Whilst it is important to consider the full consequences of disclosing confidential information it will not always be necessary to analyse these in terms of the interests of the confider and the wider public interest, when drafting a DN

(*1) The Derry case includes a useful summary of how case law has developed the scope of the public interest defence at para 35.

(*2) Such cases will usually raise data protection issues too.