s41: Information provided in confidence

Summary

  • Absolute exemption, therefore no right of access under FOI, and no consideration of the public interest test required;
  • Duty to confirm or deny whether the information exists;
  • Information must have been obtained from another person (individual, a third party company or any other legal entity);
  • Does not cover information which the University has generated itself. Therefore, marking an internally created document “confidential” does not mean that the information falls under this exemption;
  • Confidentiality status changes over time;
  • Can only be applied if disclosure would give rise to an 'actionable breach of confidence' (i.e. University could be taken to court for releasing the information into the public domain);
  • Unlikely to apply if information is reasonably accessible by another means (although it could be argued that it was exempt under s21).

On receipt of a request, consider:

  • When the information was provided, did it have explicit conditions attached to its subsequent use or disclosure?
  • If conditions of use/disclosure are not explicitly stated, does the nature of the information have obvious/implied confidentiality?
  • Is the information still confidential / commercially sensitive?

The University is advised to:

  • Consult with suppliers and contractors on receipt of a request for information that relates to them or the business/services they provide, to determine the types of information provided to the University 'in confidence'. The University would take into account any objections to disclosure from a third party, but may on occasion be required to release information in order to comply with the FOI Act;
  • Draft schedules of confidential information during future contract negotiations, especially for large contracts, and avoid blanket confidentiality clauses;
  • Review current contracts / confidentiality clauses in light of the Freedom of Information Act.

Examples of information that may fall under this exemption:

Third-party information that is confidential in nature (e.g. company's trade secrets), which was provided to the University during:-

  • a tendering process;
  • contract negotiations;
  • a research proposal, contract or project.

Some research data / results may also be confidential and fall within this exemption if the project was sponsored by a private company, a legal contract exists, and the information has a commercial value. In other cases (e.g. academic research, exemption s43 may apply).

The University also maintains a high level of confidentiality in a number of personnel related matters (e.g. medical or pyschological analyses, counselling, internal disciplinaries etc), and this may result in an overlap with exemption s40: personal information. Regardless of which exemption applies, it is unlikely that such information would be released to a third-party.

Sources of further information

More detailed guidance notes about this exemption can be found by viewing the following links: