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Confidentiality and the Environmental Information Regulations

The EIRs have not altered a public authority’s common law duty of confidence. Documents that are marked as confidential have never been legally confidential unless the release of information would be a breach of common law confidence.

Exceptions 12(5)(d) and (e) of the Environmental Information Regulations cover the grounds on which public authorities may refuse to release confidential information, subject to the public interest test.

12 (5) (d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;

12 (5) (e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”;

What is confidentiality?

In order to ascertain whether information is confidential it is important to understand what is meant by a duty of confidence and how confidentiality can be established.

What is duty of confidence?

A duty of confidence arises when one person (the “confident”) is provided with information by another (the “confider”) in the expectation that the information will only be used or disclosed in accordance with the wishes of the confider:

How can a person or body be under a duty of confidence?

There are various ways in which a person or body may be under the duty of confidentiality (either explicitly or implied), such as;

  1. If the relationship is inherently confidential e.g. priests, doctors counsellors.
  2. If the relationship is personal e.g. it is between friends or spouses in circumstances that suggest an expectation of confidentiality.
  3. If the source of the information will be put at risk if identified e.g. whistle blowers for environmental organisations.
How can confidentiality be established?
  1. Confidentiality can be agreed either verbally or in writing.
  2. It is difficult to establish that a confidentiality agreement existed retrospectively. This is especially true if there is little or no evidence of an attempt having been made to restrict or protect the information at the time the information was given. But, as outlined above, some relationships are inherently confidential and in those circumstances, confidentiality may well be implicit, rather than explicit.

The EIRs do not require there to be an “actionable” breach of confidence, which is understood in the context of FOIA to be a successfully actionable breach of confidence. The EIR exception will therefore apply more broadly than Section 41 of FOIA (information provided in confidence).

Confidentiality is unlikely to be established where the information is already known to a wide circle or is in the public domain.

With permission, confidentiality can be set aside.

What do you need to consider in conducting the public interest test?
  • Exceptions 12(5)(d) and (e) are subject to the public interest test and so information may still be released when the public interest in disclosing the information outweighs the arguments for withholding it. In balancing confidentiality against the public interest, the task is not to weigh up the impact upon the individual against the good of society, but rather the good of society against the importance of preserving confidence (see ICO Guidance above).
  • There could be occasions where the breach of a confidentiality agreement and the disclosure of information would be in the public interest.
  • Marking documents/files/emails as confidential does not in itself establish the extent to which the information in question should or should not be disclosed. However, the markings can provide a good insight into whether the information is sensitive.
  • It is important to remember that information that may be confidential at the time of writing may no longer be so at the time of a request for disclosure.
  • If a protective marking system is in use it may be helpful to note the time scale for which the marking is relevant to assist with future requests.
  • The same can be said of information given to public authorities and marked as being either “confidential” or “commercial in confidence”. Some information may well have been provided on the understanding that it would not become public. Timing will also be an important consideration in establishing whether this information remains sensitive.
  • If you are considering releasing information marked as confidential, and you are uncertain under what pretext the information was received, you could consider contacting the provider to establish their position on the confidentiality of the information, or at the very least, let them know that in light of the public interest test you have decided to release the information.

Page last modified: 9 October 2007
Page published: 24 January 2005

Department for Environment, Food and Rural Affairs