Case number: OIC-56609-W8K3B3
30 January 2020
In his FOI request dated 26 March 2019, the applicant sought access to records relating to his application for naturalisation. The Department’s decision of 25 April 2019 part-granted the request. It released 18 records and withheld record 19 under section 35(1)(a) of the FOI Act (information given in confidence). Record 19 contains 11 related documents (pages 269-279). The applicant sought an internal review of the Department’s decision on 7 May 2019. The Department’s internal review decision of 5 September 2019 affirmed its decision. On 10 September 2019, the applicant applied to this Office for a review of the Department’s decision. The Department said during the review that it would release page 274 except for the name and contact details of a Department official.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant. In particular, I note that while this Office’s Investigator gave the applicant an opportunity to comment on material issues relevant to my decision, no comments have been received. I have also had regard to the contents of record 19 and to the provisions of the FOI Act.
The review is confined to whether the Department’s decision on record 19 was justified under the FOI Act. The applicant has not indicated that he wants access to the remainder of page 274, and I have not considered it further.
Section 35(1)(b) – duty of confidence
In the overall circumstances of this case and having considered the thrust of the Department’s case as set out in its submissions, it seems to me that section 35(1)(b) is the most appropriate exemption to consider. As has been explained to the applicant, section 35(1)(b) must be applied to a record where granting access would constitute a breach of a duty of confidence provided for by an enactment other than by certain provisions of particular enactments specified by the Act, an agreement or otherwise by law (i.e. an equitable duty of confidence).
When considering the existence of an equitable duty of confidence, this Office has regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41):
"First, the information itself … must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
However, further to section 35(2) of the FOI Act, section 35(1) does not apply to records created by an FOI body in the course of the performance of its functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a FOI body, or a head or a director, or member of staff of, an FOI body".
Pages 269-273 and 275-279
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the remainder of record 19 and indeed the Department’s submission in my analysis and reasoning is very limited.
I am satisfied that page 273 was created by a third party that is not an FOI body. I am satisfied from the Department’s submission that the information in page 273 has the necessary quality of confidence about it and that the information was imparted to the Department in circumstances importing an obligation of confidence on it. I also accept that disclosure under FOI (which is essentially the same as releasing information to the world at large) of the information in page 273 would result in an unauthorised use of it to the detriment of the party communicating it. In this regard, disclosure of information without the third party’s consent is enough for detriment to arise. I am satisfied that the Department owes the third party an equitable duty of confidence in respect of the details in page 273 and that section 35(1)(b) applies to it.
While pages 269-272 and 275-279 were created by the Department, its position is that these reflect information that is contained in page 273. Having examined these pages, I accept that this is the case. For the same reasons set out in relation to page 273, I am satisfied that the information in pages 269-272 and 275-279 is subject to a duty of confidence and that section 35(1)(b) applies to them.
I am also satisfied that it would not be in keeping with the Commissioner’s approach to section 18 to direct the Department to grant access to those small parts of pages 269-272 and 275-279 that may not be subject to a duty of confidence. Section 18 provides for the grant of access to parts of records with exempt information removed, provided that it is practicable to do so and that the copy provided is not misleading. However, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.
Public Interest Defence
Section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence and the Commissioner may consider the public interest defence in the context of section 35(1)(b). The Commissioner has recognised that the parameters of the public interest defence to an action for breach of confidence continue to be in a state of development in various jurisdictions. The public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, there is no basis for setting aside the requirements of section 35(1)(b) in this case.
Having regard to the above, I find that the remainder of record 19 is exempt under section 35(1)(b) of the FOI Act. There is no need for me in such circumstances to consider whether section 35(1)(a) applies to it.
As regards the Department’s agreement to release a redacted version of page 274, I expect it to do so immediately if it has not already sent this to the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to grant access to the remainder of record 19 under section 35(1)(b) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.