Chapters: 01 | 02 | 03 | 04 | 05 | annex A | annex B | annex C
4.1 To assist the effective management of information exchanged between administrations, it is likely to be helpful for administrations to make clear from the outset when the information they are sharing is shared on the basis of an expectation of confidence. Section 41 of FOI provides an exemption where the disclosure of information would constitute an actionable breach of confidence. Though not tested by the courts, it seems unlikely that section 41 would directly apply to information shared between administrations (unless the administration itself would be at risk of an action). But the reasonable expectations which underlie the exchange of information among administrations are likely to be very relevant to subsequent requests for disclosure, and the more clearly they are articulated at the outset, the more likely it is that a disclosure decision will be able to be made clearly in turn.
In line with the MoU it would be desirable for UK Government departments to make clear to devolved administrations whether they consider information they are sharing to be sensitive (and if so for how long). In some cases it may be helpful and necessary to highlight cases where information may be subject to other FOI exemptions applicable to the relevant administrations. When sharing information departments will wish to consider the strong emphasis on sharing information under devolution and the shared commitment to FOI and respecting confidentiality (contained in the MoU). Departments will also want to bear in mind the fact that under FOI it will ultimately be a matter for each devolved administration to decide whether information it holds should be disclosed.
4.2 Section 3(2)(a)(ii) of the Freedom of Information (Scotland) Act 2002 provides that information held by a Scottish public authority in confidence, having been supplied by a UK Government Minister or department, is not treated as being "held" by the authority. Such information would not, therefore, be disclosed under the Act. The relevant Scottish public authorities are listed in Schedule 1 to that Act and include the Scottish Ministers, Scottish Executive, local councils and NHS trusts. There is no direct equivalent in the Freedom of Information Act 2000 in respect of information which has been supplied in confidence by a Scottish public authority although certain exemptions may be relevant including section 36 (prejudice to effective conduct of public affairs) and section 41 (information provided in confidence).