Further developments in Confidentiality and FOI

09 September 2008

Hazel Grant

There have been a number of cases restricting the protection given to commercially confidential information by Section 41 of the Freedom of Information Act.  However, we are now seeing interesting cases where the exemption for confidential information is being upheld and expanded to cover private information.  These follow the High Court judgment in the Secretary of State for the Home Office v (1) British Union for the Abolition of Vivisection (BUAV) and (2) the Information Commissioner (ICO)  (25 April 2008, (2008 EWHC 892)).  The case is of relevance to anyone who handles FOI requests and to organisations who are consulted on FOI requests and where the information requested relates to staff details.

The case concerned a request by BUAV for information relating to animal testing licences.  Certain information held by the Home Office in connection with animal testing is considered to be protected as confidential information under Section 24 of the Animals (Scientific Procedures) Act 1986 (ASPA).  Under Section 24 ASPA the disclosure of information “given in confidence” can result in the commission of a criminal offence.

The case concerned the interplay of Section 24 ASPA, the law of confidence, Section 41 of FOIA (the exemption for confidential information) and Section 44 FOIA (the exemption for information which is prohibited from disclosure).
The judge in the High Court upheld the Home Office’s case and held that the information was protected under Section 44 FOIA since it was prohibited from disclosure under Section 24 ASPA.

Mr Justice Eady, the judge in High Court, took the view that the Information Tribunal had too narrow a view of confidentiality, looking primarily at the cases on commercial secrets.  The judge’s decision covered the change in confidentiality to include the misuse of private information (i.e. the right to informational privacy, which has been fought for by so many royals and celebrities such as Naomi Campbell, Prince Charles and JK Rowling).  The judge said that it was not necessary for the information to have the quality of confidence, as under the new right to informational privacy even trivial information could be protected.  In addition, it was now necessary to look to Article 8 and Article 10 of the European Convention on Human Rights to have a complete view of what the law of confidence covered in the UK.

In at least one subsequent case the Information Tribunal has referred to the BUAV judgement (Ennis McBride v the ICO and MoJ 27 May 2008 EA /2007/ 0105).  This concerned a request for conflict of interest information disclosed by Baroness Amos in her capacity as a university visitor.  The information was held to be private information protected by confidence under Section 41 FOIA.