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FOI full exemptions guidance

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Section 41 - Information Provided in Confidence

Chapters: 01 | 02 | 03 | 04 | 05 | 06 | 07 | 08 | annex A | annex B

Chapter 02: Introduction

2.1 This exemption qualifies the right of access under the Act by reference to the common law action for "breach of confidence". According to that action, if a person who holds information is under a duty to keep that information confidential (a 'duty of confidence'), there will be a "breach of confidence" if that person makes an unauthorised disclosure of the information. The concept of "breach of confidence" has its roots in the notion that a person who agrees to keep information confidential should be obliged to respect that confidence. However, the law has now extended beyond this: the courts recognise that a duty of confidence may also arise due to the confidential nature of the information itself or the circumstances in which it was obtained.

2.2 The concept of "breach of confidence" recognises that unauthorised disclosure of confidential information may cause substantial harm. For example, the disclosure of a person's medical records could result in a serious invasion of that person's privacy and the disclosure of commercially sensitive information could result in substantial financial loss. The law protects these interests by requiring the information to be kept confidential: if information is disclosed in breach of a duty of confidence, the courts may award damages (or another remedy) to the person whose interests were protected by the duty.

2.3 This exemption only applies if a breach of confidence would be "actionable". A breach of confidence will only be "actionable" if a person could bring an action and be successful. The courts have recognised that a person will not succeed in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence.

2.4 If a public authority receives a request, under the Act, for information which it has obtained from another person and that public authority holds the information subject to a duty of confidence, that information will be exempt if providing it to the public would constitute an actionable breach of that confidence. Each of the elements involved in applying this exemption is examined further below.

2.5 Three important factors which public authorities must bear in mind when applying this exemption are:

Whether or not a public authority holds information subject to a duty of confidence depends largely on the circumstances in which it was obtained and whether the public authority expressly agreed to keep it confidential. Unlike many of the other exemptions under the Act, public authorities must therefore consider the application of this exemption not only when the disclosure of confidential information is requested under the Act but also whenever it obtains information which may be confidential. The Lord Chancellor's Code of Practice, issued under section 45 of the Act, limits the circumstances in which a public authority should agree to hold information in confidence.
Special considerations apply if information to which this exemption may apply is personal information relating to an individual in their private capacity. Further, specific guidance in relation to private, personal information can be found at Annex A.
If this exemption is incorrectly applied and information is wrongly disclosed, a public authority may (in some circumstances) be exposed to a common law action for breach of confidence; if information is wrongly withheld a public authority may face sanctions under the Act. The application of this exemption is essentially a legal question which calls for the careful interpretation and application of the law of breach of confidence as required by section 41. It will often be essential to seek legal advice where it appears that section 41 may apply to requested information.