Some further decisions, the Boston Council case will be of interest as it is one of the first cases relating to the S41 exemption "Information provided in confidence". The complaint has not been upheld and the IC agrees that the disclosure would have been an actionable breach of confidence. The decision notice is important as it shows how the IC outlines the application of the exemption and whether the information was confidential and consideration of whether the disclosure was an actionable breach, the IC considers the whether the public interest defence could have been used against any action:
The public interest may override any breach of a duty of confidence, if the greater public interest lies in the disclosure of the information, i.e. if there is an overriding public interest in disclosing the information, the courts will not find that a duty of confidence is owed. The Commissioner must, therefore, consider the public interest in disclosing the information against the public interest in maintaining the duty of confidence, with a view to deciding if any duty exists.
The decision contains a detailed discussed of the public interest before it concludes that the public interest does not override the duty of confidentiality. The discussion is clearly set out and explained and will act as an important example of how practitioners need to approach the exemption.
Case Ref: FS50067992
Public Authority: Department for Constitutional Affairs
Summary: The complainant requested copies of any judgements that may have been made relating to the Copyright and Related Rights Regulations 2003. The request was made to Her Majesty's Courts Service, which is an executive agency of the Department for Constitutional Affairs. The Department did not issue a refusal notice in accordance with section 17 of the Act, and the Commissioner has judged that it did not handle the request in accordance with Part 1 of the Act, particularly with regard to the time for compliance outlined in section 10. During the course of the Commissioner's review the Department for Constitutional Affairs applied section 12 of the Act, which permits an exemption from the duty to comply with a request where the cost of compliance exceeds the appropriate limit. In light of this fact the Commissioner ordered that the Courts Service must take steps to issue a refusal notice under section 17 of the Act within the time for compliance specified in the Decision Notice.
Section of Act/EIR & Finding: FOI s.22 - Complaint Upheld, s.11 - Complaint Not Upheld
Full Transcript of Decision Notice FS50067992
Case Ref: FS50064581
Public Authority: Boston Borough Council
Summary: The complainant requested a copy of a report, provided to the Council by a charitable company, relating to the charity's management of a sports arena, including financial and commercial information. The Council applied section 41 (information provided in confidence), and section 43 (commercial interests) and disclosure a redacted version; however, the Complainant wanted an unredacted copy of the report. The Commissioner found that a duty of confidence exists, and that the information was exempt from disclosure under section 41 of the Act as this would produce an actionable breach of that duty.
Section of Act/EIR & Finding: FOI s.41 - Complaint Not Upheld
Full Transcript of Decision Notice FS50064581
Case Ref: FER0065671
Public Authority: The Commissioner for Administration in England (the Local Government Ombudsman)
Summary: The complainant requested copies of any information, held on any investigation file, which related to the construction of his property. The Public Authority responded by claiming that, under section 44 of the Act, there is a statutory prohibition on disclosing any information it holds as a result of an investigation. The authority did not confirm or deny whether it held the relevant information. The Commissioner investigated the application of the exemption and is satisfied that the Authority is under a statutory duty not to disclose any information it holds as a result of investigations it has carried out. The Commissioner also considered whether any information the Authority may hold would fall within the scope of the Environmental Information Regulations. The Commissioner decided that if any information were held the Ombudsman would be exempted from disclosing this under regulation 12 (5) (d).
Section of Act/EIR & Finding: FOI s.1 - Complaint Not Upheld, EIR Regulation 5 - Complaint Not Upheld
Full Transcript of Decision Notice FER0065671