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FOI full exemptions guidance

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Section 41 - Information Provided in Confidence

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Chapter 05: Consultation

5.1 As explained in paragraph 3.4.1 above, if the person who supplied the information or the person to whom the obligation of confidence is owed agrees to the disclosure of that information to the public, disclosing it in response to an FOI request will not be a breach of a duty of confidence and section 41 will not apply. In order to ascertain whether information supplied in confidence can be disclosed in response to an FOI request or is exempt under section 41, it may be necessary to consult with the information provider, affected third parties and in some cases other relevant departments, depending on the nature of the information.

5.2 Consultation with the person to whom the duty is owed will not release departments from their obligations under the FOI. If a person does not respond to consultation or refuses consent to disclosure, it is still necessary to consider whether section 41 applies.

5.3 The Lord Chancellor's Code of Practice, issued under section 45 of the Act, deals with consultation of third parties in relation to FOI requests and provides:

Where a disclosure cannot be made without the consent of a third party, (for example if disclosure of the information would be a breach of confidence to which section 41 would apply), the authority should consult that third party with a view to seeking their consent to the disclosure unless such a consultation is not practicable (for example because the third party cannot be located or because the costs of consulting them would be disproportionate);
If a public authority considers that consultation would be disproportionate, it should consider what is the most reasonable cause of action for it to take in light of the requirements of the act and the individual circumstances of the request.

5.4 As explained above, the Information Commissioner is responsible for ensuring adherence to the Code and there is a legitimate expectation that public authorities will comply with it.