Section 41 - a jargon buster
Simply labelling information ‘confidential’ is not enough to engage section 41 of the Freedom of Information Act. You must show that:
- information was provided to you in confidence;
- disclosing it would make you breach that confidence, and
- there is no public interest defence available if you do so.
This jargon buster will help you apply the exemption, and clearly explain your refusal to requesters.
The full text of section 41 (1), and an important test derived from case law, are included below the table for reference.
| Phrase | What this actually means in the s41 context |
| Any other person | A person can be either an individual or an organisation. ‘Other’ means that they’re not part of your organisation. |
| Otherwise than under this Act | You have to assess whether to disclose information based only on the common law duty of confidence. You cannot use FOIA as a legal basis for justifying the disclosure. |
| Breach of Confidence | Sharing information when the person who gave it to you had a right to expect you not to. |
| Actionable | Something is actionable if someone could take you to court over it and be likely to win. A claim is unlikely to be actionable if you can defeat it on public interest grounds. |
| Quality of Confidence | Information has this quality if it’s important (not trivial), and is not common knowledge or widely accessible. |
| Trivial Information | Information of little value or importance. Personal matters are usually more than trivial because they are important to somebody. |
| Common knowledge | If the public can already find information by searching for it online, or read about it in the media, it is unlikely to have the “quality of confidence”. |
| Obligation / Duty of Confidence | Your responsibility to protect information provided to you when it is reasonable to expect that the information will be held in confidence. |
| Detriment | A negative effect caused by the disclosure of information. There does not need to be a tangible loss for the person to suffer a detriment in a personal or private matter. However, for commercial information you will need to state an explicit case for detriment. For example, giving the public sensitive technical information might harm an organisation’s commercial interests. |
| Public Interest Defence | Showing that you could defeat a breach of confidence claim because you had a good reason in the public interest to disclose information, for example exposing wrongdoing. |
The legislation states:
41 (1) Information is exempt information if—
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
The High Court decision in Coco v A.N. Clark (Engineers) LtD [1969] sets out a three-part test to decide if disclosure of information would result in a breach of confidence:
- The information must have the “necessary quality of confidence”.
- The information was imparted in circumstances importing an obligation of confidence.
- There is an unauthorised use of the information to the detriment of the party communicating it.
Our full guidance on section 41, which you can access through the list of exemptions, provides more detail, including real-life examples.