FOISA Education Council incorrectly relies on confidentiality exemption

The Freedom of Information (Scotland) Act 2002 (FOISA) gives individuals the right to ask for, and be given, any kind of recorded information from public authorities in Scotland. However, public authorities have the right to refuse an information request in certain circumstances, including when the information is exempt under FOISA. An exemption commonly used by public authorities is that of confidential information – as was the case in circumstances surrounding the recent decision of the Scottish Information Commissioner (SIC). FOISA provides that information is exempt if it was obtained by a Scottish public authority from another person and its disclosure to the public would constitute a breach of confidence actionable by that person.

What happened?

An individual named Mr Brown made an information request under FOISA to the Scottish Further and Higher Education Funding Council (SFC). Mr Brown had requested the names of individuals who had been interviewed in relation to a report (prepared on behalf of the SFC) on the governance procedures of a college following suspension of the college’s principal. The SFC withheld the names of the interviewees, relying on the FOISA exemptions of confidentiality and personal information.

Mr Brown asked the SFC to review their decision (as he was entitled to do under FOISA), but the SFC decided to continue to withhold the information. If an individual has already been through the two steps of making a request and requesting a review and are still not happy, they can then appeal to the SIC – as Mr Brown did in this case.

The SFC argued that the verbal assurances on confidentiality were given to interviewees at the outset of interviews and therefore the exemption of confidentiality applied. Mr Brown accepted that the information obtained from the interviews may be confidential but that the names of the interviewees were not, and pointed out that the report stated that “SFC reserves to publish the report in whole or in part”.

What did the SIC say?

The SIC found that the SFC wrongly relied on the confidentiality exemption:

  • The SIC’s decision noted that a redacted version of the report was in the public domain, and although the interviewees’ names were not provided outright, the report made reference to titles such as “The Chair” – so, at least some information in relation to the identities of some of the interviewees was in the public domain. However, the SIC conceded that most of the interviewees’ names were in fact of a confidential nature.
  • The SIC’s reasoning for finding that the exemption didn’t apply was based on its finding that there was no ongoing obligation to maintain confidentiality as the interviewees held positions within the college which made them likely to be interviewed.
  • Interestingly, the SIC did not consider the personal information exemption also applied by the SFC, and one wonders whether this exemption would have been upheld. The SIC has, however, created guidance on this exemption (available here) which suggests that the ‘seniority’ of a person’s role is a consideration for public authorities when deciding to apply the personal information exemption.

Public interest: The SIC decision notes that the confidentiality exemption under FOISA is an ‘absolute’ exemption and, therefore, a public authority does not need to consider the public interest test (which many of the other exemptions are). However, the SIC also points out in its decision that it is generally accepted at common law that an obligation of confidence will not be enforced if disclosure of the information is necessary in the public interest. From this, perhaps the SIC is attempting to dilute the ‘absoluteness’ of this FOISA exemption and imply a public interest qualification – although this is clear as the SIC does not then go on to apply the test in its decision.

What can public authorities learn from this?
  • If you want to safeguard the confidential nature of information then be careful about what information you circulate and put in the public domain.
  • Be careful in relation to who you provide undertakings of confidentiality. In this decision, the SIC found that there was no obligation to maintain confidentiality as the interviewees held certain roles which made them likely to be interviewed.
  • While it is not clear why the SIC referred to the common law public interest test, it could be seen as an indication that the qualification is to apply to the FOISA confidentiality exemption.

This article was co-written by Melissa Hendrie.

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