In a recent hearing, the Upper Tribunal held that the names of the parties to a settlement agreement with a local authority had been obtained from them and did not constitute mutually agreed contractual terms, so the local authority was exempted from its duty of disclosure under the Freedom of Information Act 2000 (FOIA) by the section 41 exemption which applies to information provided in confidence.
The legislation
FOIA provides the public with rights to request access to information held by public authorities. Public authorities then have a duty to disclose the requested information unless they can rely on a relevant exemption. There are 23 exemptions from this duty to disclose available under FOIA, which are classified as either “absolute” (where no release of the information is required), or “qualified” (where the information must be considered in light of the "public interest" test i.e. whether releasing the information is in the public interest and benefits the community as a whole).
Under section 41(1), an absolute exemption from the duty to disclose may be available where:
- The relevant information was obtained by the public authority from any other person and
- Disclosure of the information to the public (except under FOIA) would constitute a breach of confidence actionable by the person who provided the information or by any other person.
In the case of contracts the parties tend to seek to rely on section 43 in response to requests to access information relating to contracts themselves as it is generally accepted that section 41 will not apply to the contract terms itself. Here the parties were concerned with settlement agreements and specifically the name of the party to the settlement agreement.
Whilst agreeing that settlement agreements are a form of contract, which generally contain a set of mutually agreed obligations rather than information simply "obtained" from another person, Judge Wikeley in the Upper Tribunal held that the party names reflect a party’s legal personality and are a "non-negotiable fact" rather than a commercially negotiated and agreed feature of the contract.
The case was then remitted back to the FTT(IR) for reconsideration of the Information Commission’s appeal, on the basis that the section 41(1)(a) has been met i.e. the parties to the settlement agreements names had been obtained by another person, and it was for the tribunal to consider whether section 41(1)(b) is also met and the section 41 exemption therefore engaged (as well any others).
Information Commissioner v Driver and another [2020] UKUT 333 (AAC)
Jessica Gregson