MOD FOI/EIR Compliance Notes
FOI Exemptions
CN37: Section 41 (Breach of Confidence)
What this is about:
This note provides an overview of the exemption in section 41 of the Freedom of Information (FOI)
Act – information obtained from any person where disclosure would be a breach of confidence
actionable by any person. It also provides an outline of MOD compliance points to consider when
engaging section 41 and other exemptions to consider.
Detail:
• Section 41 applies to information obtained from any other person, including another public
authority, where release would constitute an actionable breach of confidence (where the
provider or a third party would have the right to take the MOD to court).
• Duties of confidence continue after the death of an individual to whom that duty is owed.
• The exemption is
absolute unless there is an overriding public interest in disclosure. A
test of the Public Interest Test is not required.
MOD compliance points:
• A
duty of confidence arises when information is provided to the MOD in the
expectation that it will only be used or disclosed in accordance with the wishes of the
confider. Obligations of confidence may be explicit (in the form of a letter or contractual
obligation) or implied (such as information provided to a doctor). In some circumstance, it
may be difficult to determine if information was provided in confidence (such as information
provided to an MP by a constituent); the usual test is to assess the vulnerability to a breach
of confidence action or to approach the information provider. Where the provider agrees to
its release, information may be disclosed.
• If you are considering disclosing such information you should consult the third party who
provided it prior to release, as well as notifying them before disclosure. If it is not
practicable to obtain the consent of the provider of the advice, the matter should be referred
to ISS.
• For information to be protected by section 41 it must also have the necessary
quality of
confidence. The information need not be highly confidential, but it cannot be trivial – since
release of such information would not result in an actionable breach. Additionally, the
information cannot be widely publicly available. Simply having a protective marking, such
as being marked ‘commercial in confidence’ does not guarantee a quality of confidence.
•
Information may be released where there is an overriding public interest to do so. In
such cases an inherent public interest test in the duty of confidence needs to be applied.
• This is the reverse of the normal PIT process, since there is a presumption in favour of
withholding unless strong arguments in favour are shown. These may include exposing
public impropriety, misconduct, illegality or risks to the public.
• This exemption would not usually apply to completed contracts, but may apply to elements
of them. Those entering into a contract with the MOD are made aware that any information
provided to the MOD will be covered by the FOI Act, and may be subject to release if a
request is made.
• The duty to confirm or deny whether information is held does not arise where to do so
would involve the disclosure of such information. Disclosure of the fact that information on a
MOD FOI/EIR Compliance Notes
topic was obtained in confidence could, in some circumstances, disclose something of the
substance of the information.
Other exemptions to consider:
• The wider harm which release of confidential information could cause should be considered
in the exemptions used, which might require engaging
section 43 (prejudice to
commercial interests) instead of/in addition to section 41.
• If information was obtained from another state, international organisation or international
court, then
section 27(2), (International relations) should be applied instead of section
41.
• If the information in question is Legal Advice provided to the MOD in confidence by a
lawyer, then
section 42 (Legal Professional Privilege) should be applied. However, if the
Legal Advice has been obtained from a third party, it may be simpler to apply section 41
instead.
• Since government departments cannot sue each other, Section 41 cannot be used to
protect information passed between them.
Section 36, (Prejudice to the effective
conduct of public affairs), should be considered instead.
MOD Casework Example:
•
Queen Elizabeth Contract Information – A request was made for a copy of the contract
between MOD and BAE Systems for the construction of the Queen-Elizabeth Class
Carriers. Whilst elements of the contract were released, sections of information provided in
confidence were withheld, in line with the confidentially agreement reached between the
MOD and its commercial partners. These redactions were checked and agreed to by all
parties.
For further information – see the ICO’s detailed guidance:
https://ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-
section-41.pdf