Chapters: 01 | 02 | 03 | 04 | 05 | 06 | 07 | 08 | annex A | annex B
7.1 In all cases where the decision is taken to withhold information it is important for Departments to ensure that there are clear reasons for the refusal to disclose which will stand up to scrutiny by the Information Commissioner and, ultimately, the courts. It is essential that reasons for decisions are properly recorded and that there is an audit trail to demonstrate how those decisions were reached. In particular, this must show why the public interest in favour of keeping the confidence was not outweighed by any countervailing public interest in disclosure.
7.2 Section 41 only applies where disclosure of information to the public would constitute an actionable breach of confidence. The courts have recognised that where person A passes confidential information to person B, it will not necessarily be an actionable breach of a duty of confidence for person B to disclose the information to person C, particularly if C is also under a duty to keep the confidence. Indeed, public authorities will often find themselves in the position of person C. However, it is not possible for a public authority to disclose information in response to an FOI request subject to a duty of confidence on the part of the applicant. If section 41 applies then the request must be refused.
7.3 If information is exempt from the FOI Act under section 41, public authorities may, in certain circumstances, still be able to disclose the information to the particular applicant concerned without this constituting an actionable breach of confidence at common law. For example, if a public authority considers that there is a strong public interest in a particular applicant knowing the exempt information and it would be both possible and in the public interest to disclose the information to that person, or if the information could be disclosed subject to an undertaking of confidentiality by the applicant without breaching the duty of confidence, the public authority may still be able to disclose the information even though the request has been refused under the FOI Act. The circumstances in which this is possible will be limited and will depend heavily on the identity of the applicant, a knowledge of the purposes to which the applicant intends to put the information and the ability of the authority to disclose the information subject to conditions of confidence without breaching the duty of confidence: advice should be sought where this is proposed.
7.4 Departments must make very clear:
NB: Whether disclosure of confidential information to a particular applicant outside the FOI Act would be an actionable breach of confidence is separate from the question of whether the public authority has the power to make the disclosure in a public law sense. If information is exempt from the FOI Act, that Act has no effect on the public authority's power to disclose the information. If information is exempt from the FOI Act under section 40 but a public authority is, never the less, considering disclosing it to the particular applicant concerned because it would not be an actionable breach of confidence to do so, that public authority must be satisfied that it has the power to make the disclosure.