4.1 By virtue of section 41(2), the obligation to confirm
or deny that the requested information is held does not arise if such a
confirmation or denial would, in itself represent an actionable breach of
confidence. When ascertaining whether confirmation or denial would constitute
an actionable breach of confidence, the same considerations will apply as
to the disclosure of the information itself:
is the fact that the public authority does or does not hold the information
itself information which is held subject to a duty of confidence? And
would confirmation or denial constitute an actionable breach of that
duty of confidence?
