First-tier Tribunal (General Regulatory Chamber)

EA/2023/0448 - [2025] UKFTT 00077 (GRC)

Fecha: 29-Ene-2025

Legal Framework

Legal Framework

20.

The relevant provisions of FOIA are as follows:

S.1 General right of access to information held by public authorities

(1)

Any person making a request for information to a public authority is entitled –

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.

…….

S.2 Effect of the exemptions in Part II

…….

(2)

In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that –

(a)

the information is exempt information by virtue of a provision conferring absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

21.

Section 41 provides, so far as relevant:

S.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.”

22.

The starting point for assessing whether there is an actionable breach of confidence is the three-fold test in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, read in the light of the developing case law on privacy:

Does the information have the necessary quality of confidence?

Was it imparted in circumstances importing an obligation of confidence?

Is there an unauthorised use of the information to the detriment of the party communicating it?

23.

The common law of confidence has developed in the light of Articles 8 and 10 of the European Convention on Human Rights to provide, in effect, that the misuse of ‘private’ information can also give rise to an actionable breach of confidence. If an individual objectively has a reasonable expectation of privacy in relation to the information, it may amount to an actionable breach of confidence if the balancing exercise between article 8 and article 10 rights comes down in favour of article 8.

24.

Section 41 FOIA is an absolute exemption. However, the public interest may constitute a defence to an action at common law for breach of confidence. As such, the public interest must still be taken into account in determining whether disclosure would constitute an actionable breach of confidence. The burden is on the person seeking disclosure to show that the public interest justifies interference with the right to confidence. There is an assumption that the information should be withheld unless the public interest in disclosure outweighs the public interest in upholding the duty of confidence.