The Information Tribunal’s judgment in Higher Education Funding Council for England v Information Commissioner (EA/2009/0036) is its most definitive decision to date on the exemption for confidential information provided by s. 41 FOIA. Most decisions about s. 41 will – for now – need to take into account the issues addressed in this judgment.
The Council, a statutory body for the administration of higher education funding, relied on this exemption in refusing to disclose to a Guardian journalist information relating to the state of the buildings at Higher Education Institutions that contributed to the Council’s database. The Commissioner decided that s. 41 was not engaged. The Tribunal agreed, addressing a number of important issues along the way.
First, and most crucially: s. 41 is triggered by an “actionable” breach of confidence. Does “actionable” in this context denote a claim that is likely to succeed on the balance of probabilities (as the Commissioner contended, supported by Guardian News as an additional party) or merely a claim that is properly arguable (as the Council argued)? The Tribunal regarded this as a novel point on which the statutory wording was ambiguous. Accordingly, it turned to Hansard, which provided an unequivocal resolution: “actionable” for s. 41 purposes means (in the words of the bill’s sponsor, Lord Falconer) “being able to go to court and win”. For public authorities wishing to rely on s. 41, a merely arguable potential action will not suffice.
Next, the Tribunal considered the long-established definition of actionable breach of confidence from Coco v AN Clark (Engineers) Ltd [1968] FSR 415, the first limb of which requires that the information has the “necessary quality of confidence”. Guardian News conceded that the information was neither trivial nor widely accessible, but argued that limb 1 of Coco imposed two further requirements, namely: the party claiming confidentiality must demonstrate some value it would derive from non-disclosure of the disputed information, and the information must be confidential from the objective standpoint of the reasonable person. While it found that both of these conditions were met in this case, the Tribunal found it unnecessary to read these supplementary questions into the Coco test.
Third, the Tribunal considered the principle (under limb 3 of Coco) that a breach of confidence is only actionable if the confider suffers detriment thereby. Caselaw shows that, where private (as opposed to commercial) information is at stake, courts have not insisted on this detriment criterion. Nonetheless, the Tribunal declined to deviate from Coco: for s. 41 to be engaged, the public authority must make out detriment. The standard of detriment is not onerous: reputational damage suffices. In the circumstances, however, it was only the higher education institutions who were capable of suffering detriment, and not the Council in its own right, because the latter was merely the servant of the former.
Finally, the Tribunal, applying the proportionality test from HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, held that a public interest defence would defeat a claim for breach of confidence in these circumstances. Notably, the Tribunal held that even if disclosure were to result in uncooperative behaviour from Higher Education Institutions, little weight should be attached to any such detriment based on obstructive behaviour “which would fall short of the standard of stewardship which the public is entitled to expect”.