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Hafan

What does FOIA say?

Contents

41.— Information provided in confidence.

(1) Information is exempt information if —

(a) it was obtained by the public authority from any other person (including another public authority), and

(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

Section 41 aims to protect information given to you in confidence. It allows you to refuse to disclose information in response to an FOI request if you can show that: 

  • you have received the information from someone else. This can also be another public authority or an organisation; and
  • disclosing it would expose you to a breach of confidence claim which is likely to succeed. 

Before considering if you can disclose the information, you must first consider if you can confirm holding it. 

Section 41(1)(b) says that you need to decide if you can disclose the information to the public “otherwise than” under FOIA. This means you disregard FOIA as a legal basis for disclosing the information. You have to decide if the disclosure would be lawful based on the common law duty of confidence. The words “apart from this Act” in section 41(2) have the same effect. 

Section 41 is an absolute exemption. It does not have a public interest test. However, you still have to do a balancing exercise when deciding if a claim for breach of confidence is likely to succeed. A breach of confidence claim is unlikely to succeed if you can justify that the breach is in the public interest. This is called having a “public interest defence”. 

We discuss this in more detail in the section “Would you have a public interest defence to the claim?”.