Emails detailing phone call conversations can hold confidential information that public bodies should not disclose

Out-Law News | 22 May 2012 | 5:18 pm | 2 min. read

A local authority in London was "justified" in not disclosing an email that recorded the "substance" of a telephone conversation between a staff member and a third party because it would have been a breach of confidence to do so, an Information Rights Tribunal has ruled.

The Tribunal rejected the view of a William Thackeray who had argued that the Common Council of the City of London should have to disclose the information, which relates to the authority's dealings with organisations linked with the Church of Scientology.

Thackeray had claimed that the Information Commissioner had been wrong to allow the authority to rely on a particular section of the Freedom of Information (FOI) Act to refuse his request for the email. The email had been created by the Common Council's staff member and was therefore subject to disclosure, he had argued.

"We have considered the contents of the document and the circumstances in which, it says on its face, the information was obtained," the Tribunal said in its ruling (5-page / 41KB PDF). "We are satisfied, on that basis, that the Information Commissioner’s analysis was correct and that a breach of confidence claim could be sustained against the Authority if it had disclosed it other than under the [FOI Act]."

"We reject the argument by Mr Thackeray that the exemption was not engaged because [the email] was created by the Authority. The document may have been created by an employee of the Authority but the information contained in it had certainly been obtained from a third party, being the person to whom the writer of the document had spoken," it said.

Under FOI laws individuals have a general 'right to know', which entitles them to be provided with information held by Government departments and public bodies. However, those bodies can legitimately withhold information requested in some circumstances.

One absolute exemption under the Act allows bodies to refuse to disclose information they hold when it is "obtained ... from any other person" and "disclosure to the public ... would constitute a breach of confidence actionable by that or any other person."

In agreeing with the Information Commissioner's findings the Tribunal held that the information sought by Thackeray had satisfied criteria for breach of confidence. Previous case law in England and Wales has established a three stage test for determining whether a breach of confidence has occurred.

Under the test the "information in question" must first have the "necessary quality of confidence" to obtain protection. It also must have been "passed by the confider in circumstances that gave rise to an obligation of confidence". Finally, any "unauthorised use or disclosure" by the person taken into confidence must also have to lead to "detriment" suffered by the confider.

"The Information Commissioner decided that the information recorded in document had been obtained by the third party who had participated in the recorded conversation and that it included information having the necessary quality of confidence to satisfy the first part of the ... test," the Tribunal's ruling said. "He also concluded that the information had been confided to the Authority in circumstances that gave rise to an obligation of confidence and that its disclosure would lead detriment for the confider."