Case number: Case 99270
Request for a copy of a letter written by Ms Y in connection with a civil action taken in 1989 against the requester by Ms Y's father and brother - whether the letter contained information given by Ms Y to the Department in confidence - section 26(1)(a) - whether release of the letter would result in a breach of an equitable duty of confidence owed by the Department to Ms Y - section 26(1)(b) - whether the information related to financial information whose disclosure could be detrimental to Ms Y's family - section 27(1)(b) - whether the contents of the letter relate to personal information about Ms Y and her family - section 28(1) - public interest
Ms Y wrote a letter to the Minister for Justice, Equality and Law Reform making a serious allegation against the requester, involving the falsification of evidence. She sent copies of her letter to various other parties, including the Garda Commissioner, who in turn, forwarded his copy of the letter to a particular Garda Station for investigation. The requester claimed that in the course of the investigation, a Garda Sergeant read the letter to him in full. Ms Y was notified by the Department of the FOI request for the letter. She objected to its release out of concern that it could be used to take action against her; on the basis that it contained personal information; and on the basis that it also contained financial information which disclosure could be detrimental to her family.
In considering the four tests to be met in order for it to be said that section 26(1)(a) applied to the letter, the Commissioner commented that he considers information given in confidence to be concerned with private or secret matters, rather than information which is trite or which is already in the public domain. He also commented that the communication must be for a restricted or limited purpose, and that there must also be an understanding that the information is being communicated for a restricted purpose.
The Commissioner said that interpreted the term "understanding", in the context of section 26(1)(a), as meaning a mutual understanding between the confider and the confidant. He noted that, in this case, it was apparent that no express assurance of confidentiality was given to Ms Y by the Department in relation to her letter. He then considered the relevant circumstances, to determine whether an implied understanding of confidentiality existed. The Commissioner noted that the letter was not marked as confidential, nor did Ms Y's reply to the Department, on foot of its section 29 notification, claim that it was given in confidence. The contents of the letter did not suggest that Ms Y sought confidential treatment, and the Commissioner also noted that she copied her letter to several parties and that she had admitted it was her intention that the letter be acted upon. Accordingly, the letter was not treated as confidential by the Gardaí, and its contents were disclosed to the requester in the course of the Garda investigation into the matters alleged by Ms Y. The Commissioner found that the letter did not have the necessary quality of confidence for the purposes of section 26(1)(a).
The Commissioner also noted that Ms Y could not have reasonably expected that her letter would be treated as confidential, if appropriate action was to be taken on foot of it. He commented that the common law duty to accord procedural fairness, required disclosure of the letter's contents so that the requester could have been given an opportunity to respond to the allegations made against him. In relation to the requirement that the future supply of information be of importance to the Department, the Commissioner noted that the Department and the Minister had no role whatsoever in relation to the matters alleged by Ms Y in her letter. He referred to the Department's statement that, upon receipt of such letters, it has a duty to assist such complainants, by pointing them "in the right direction". The Commissioner did not accept that continued receipt of such letters was of importance to the Department and he did not accept that section 26(1)(a) applied to the letter.
The Commissioner also considered whether section 26(1)(b) applied to the letter. He said that he considered that three tests must be met in order for this exemption to apply - i.e. (1) the information has the necessary quality of confidence about it; (2) the information was imparted in circumstances imposing an obligation of confidence; (3) there is an unauthorised use of that information to the detriment of the party communicating it. The Commissioner found that the information in the letter was not confidential, in that it had already been disclosed to the requester, and that no obligation of confidence could have been imposed upon the Department (or any other of the recipients) in light of Ms Y's intention that action be taken on foot of her allegations. The Commissioner found that section 26(1)(b) did not apply to the letter.
In relation to Ms Y's claim that release of the information in the letter would reveal financial information which disclosure could be detrimental to her family, the Commissioner did not agree that the information concerned was of a financial nature, or was otherwise of a type that fell within the scope of section 27(1)(b). The Commissioner said that, although Ms Y feared there may be legal consequences to the release of her letter through FOI, he did not accept that disclosure could reasonably be expected to result in "a materiel financial loss or gain to the person to whom the information relates".
The Commissioner directed the release of the letter, subject to the deletion of personal information in the letter about Ms Y and her family. He commented that, while the letter's contents were appropriately disclosed to the requester in accordance with the requirements of procedural fairness, this did not mean that the personal details of Ms Y and her family were not protected under section 28(1). He found that there was no public interest in releasing these details that would outweigh the right to privacy of the individuals concerned.
Our Reference: 99270
30.07.2001
Mr. X
Dear Mr. X
I refer to your application for a review of the decision of the Department of Justice, Equality and Law Reform to refuse your request under the Freedom of Information Act, 1997 ("the FOI Act"), for a copy of a letter written by Ms. Y in connection with a civil action taken against you by her father and brother in 1989 in the Circuit Court in County Z. I appreciate that you wished to obtain a decision on your application at an earlier date. Unfortunately, due to the large number of cases pending before me, this did not prove possible.
As you know, Ms. Y wrote a letter to the Minister for Justice, Equality and Law Reform in which she made a serious allegation against you involving the falsification of evidence. Ms. Y sent copies of her letter to various other parties, including the Garda Commissioner. The Garda Commissioner, in turn, forwarded his copy of the letter to a particular Garda Station for investigation. You claim that in the course of the investigation, a particular Garda Sergeant read the letter to you in full. You now seek a copy of the letter and, accordingly, in April 1999, you filed a request under the FOI Act. I note that the reasons for your request are not relevant to this review (section 8(4) of the FOI Act refers).
On 5 May 1999, the Department notified Ms. Y of your request under section 29 of the FOI Act. In response, Ms. Y objected to the release of her letter primarily out of concern that it could be used to take legal action against her. She also invoked exemptions under sections 28(1) and 27(1)(b) of the FOI on the grounds that the letter contained personal information, as well as financial information whose disclosure could be detrimental to her family.
Subsequently, on 9 June 1999, the Department refused your request under sections 26(1)(a), (b), and 28 of the FOI Act. In its decision, the Department also referred to Ms. Y's objection on the basis of section 27(1)(b). In a letter received by my Office on 16 June 1999, you applied for a review of the Department's decision. I accepted the application for review on 23 June 1999.
I have now completed my review of the Department's decision under section 34(2) of the Freedom of Information Act ("the FOI Act"). In carrying out that review, I have had regard to the submissions from you, Ms. Y, and the Department. In addition, I note that on 30 July 1999, Ms. Roisin Connolly, Investigator, spoke by telephone to the Garda Sergeant in the relevant Garda Station to confirm your claim that the contents of the letter you request have been disclosed to you.
The sole issue before me in this case is whether the Department was justified in refusing to grant you access to Ms. Y's letter. In deciding this issue, I am mindful that the Department's decision is presumed not to have been justified unless it is shown otherwise to my satisfaction (section 34(12)(b) refers).
Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column 3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".
For section 26(1)(a) to apply, it is necessary for the Department to show four things, namely:
In Mr. Michael Grange and the Department of Enterprise, Trade and Employment, Case Number 98179, 2 OIC 203 (1999), I interpreted the first two requirements of section 26(1)(a) by reference to the following definition of the term "confidence", which is derived from the law relating to breach of duty of confidence: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." ("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.). Based on this definition, I found that, first, information given in confidence is concerned with private or secret matters rather than information which is trite or which is already in the public domain, i.e. that it is necessary to establish that the information has the necessary quality of confidence. Second, the communication must be for a restricted or limited purpose. Third, there must be an understanding that the information is being communicated for a restricted purpose.
In Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works, Case Number 98049, 2 OIC Dec. 144 (1999), I interpreted the term "understanding" in the context of section 26(1)(a) as meaning a mutual understanding between the confider and the confidant. In this case, it is apparent that no express assurance of confidentiality was given to Ms. Y by the Department in relation to her letter. Therefore, I must examine the relevant circumstances to determine whether an implied understanding of confidentiality existed. As the Queensland Information Commissioner explained in McCann and Queensland Police Service, (1997) 4 QAR 30, at paragraph 23:
"Where no express assurance of confidentiality is sought by the supplier and given by the recipient, the relevant circumstances attending the communication of information must be examined to ascertain whether they evidence a need, desire or requirement, on the part of the supplier of information, for confidential treatment (of the supplier's identity, or information supplied, or both) which, in all the relevant circumstances, the supplier could reasonably expect of the recipient, and which was understood and accepted by the recipient, thereby giving rise to an implicit mutual understanding that confidentiality would be observed."
An examination of the relevant circumstances necessarily involves consideration of the nature of the information given to the Department and the purpose of the communication in accordance with the guidance given in Case Number 98179.
I note that Ms. Y's letter was not marked as confidential, and even in her reply to the Department's section 29 notification, she did not claim that the letter was given in confidence. Moreover, nothing in the contents of the letter suggested that confidential treatment was desired by Ms. Y. While the letter includes a few personal details relating to Ms. Y and her family, these are not of a particularly sensitive nature. In any event, Ms. Y copied her letter to several parties, and she admits that it was her intention that the letter be acted upon. Accordingly, the letter was not treated as confidential by the Gardaí, and its contents were disclosed to you in the course of the Garda investigation into the matters alleged by Ms. Y. I therefore find that the letter does not have the necessary quality of confidence for the purposes of section 26(1)(a).
I further note that Ms. Y could not have reasonably expected that her letter would be treated as confidential if appropriate action was to be taken on foot of her allegations. The common law duty to accord procedural fairness required disclosure of the contents of the letter so that you could be given an opportunity to respond to the allegations made against you. In the circumstances, I do not accept that the information in the letter was given in confidence and on the understanding that it would be treated as confidential. In other words, I am not satisfied that the first two requirements of section 26(1)(a) are met in this case.
As the information at issue has already been disclosed to you, I do not consider it fruitful to address the question of whether such disclosure would be likely to prejudice the giving to the Department of further similar information from Ms. Y or other persons in the future. For the guidance of the Department, however, I will briefly comment on the requirement that the future supply of further similar information be of importance to the Department.
Recently, in Mr. Daniel Reed and the Department of Enterprise Trade and Employment, Case Number 000041, To Be Published (9 April 2001), at paragraph 22, I took the view that the purpose of section 26(1)(a) is to protect the flow of information which relates to the exercise by the body of its statutory powers and functions. I explained that in the case of a Department, this purpose extends to its Minister's statutory powers and functions, including those arising as a member of Government.
According to the Department's file and its submission in this case, the Department and the Minister have no role whatsoever in relation to the matters alleged by Ms. Y in her letter. The Department did not even consider the letter appropriate for direct referral to the Gardaí. The Department states that upon receipt of such letters, it has a duty to do whatever is possible to assist the complainants, such as "point [them] in the right direction". However, this does not mean that the continued receipt of such letters is of importance to the Department. I therefore am not satisfied that Ms. Y's letter qualifies for exemption under section 26(1)(a) of the FOI Act.
Although the Department also relied on section 26(1)(b) of the FOI Act as a basis for refusing you access to the letter, no argument has been made that disclosure would breach a duty of confidence imposed by an agreement or enactment. Nevertheless, section 26(1)(b) may apply if disclosure would constitute a breach of a duty of confidence owed in equity. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415. The tests require that: (1) the information has the necessary quality of confidence about it; (2) the information was imparted in circumstances imposing an obligation of confidence; (3) there is an unauthorised use of that information to the detriment of the party communicating it.
I note that the first two requirements of the Coco tests correspond to a large extent with the first two requirements of section 26(1)(a) of the FOI Act. Thus, the circumstances which led me to conclude that the first two requirements of section 26(1)(a) were not met in this case are also relevant in relation to the question of whether an equitable duty of confidence exists. Above all, I consider that the information in the letters is not confidential in that it has already been disclosed to you and that no obligation of confidence could have been imposed upon the Department or any of the other recipients in light of Ms. Y's intention that action be taken on foot of her allegations. I therefore find that section 26(1)(b) does not apply.
This section provides that a head shall refuse to grant a request under section 7 if the record concerned contains
"(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation"
As stated above, Ms. Y contends that the letter at issue contains financial information whose disclosure could be detrimental to her family. However, I do not agree the information in the letter is of a financial nature or is otherwise of a type that falls within the scope of section 27(1)(b). In any event, I repeat that the information has already been disclosed to you. While Ms. Y fears that there may be legal consequences to the release of her letter to you through FOI, I would not consider that the disclosure of the information in the letter could reasonably be expected to result in a "material financial loss or gain to the person to whom the information relates".
Section 28 of the FOI Act prohibits the release of personal information about third parties (including personal information relating to a deceased individual) unless the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. Personal information is defined in section 2 of the FOI Act as including information about an identifiable individual that "would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual". In this case, I find that the following extracts of Ms. Y's letter meet the definition of personal information:
I take the view that the release of information under FOI is generally speaking the equivalent of placing the information in the public domain. Thus, while the contents of the letter at issue were appropriately disclosed to you in accordance with the requirements of procedural fairness, this does not mean that the personal details relating to Ms. Y and her family are not protected under section 28. I find no public interest in releasing these personal details which would outweigh the right to privacy of the individuals concerned. I conclude that the Department was justified in refusing to grant you access to the extracts listed above.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department and direct that you be granted access to Ms. Y's letter subject to the deletions outlined above.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.
Yours sincerely
Information Commissioner