Key published decisions applying Section 46 FOI Act

B and Brisbane North Regional Health Authority (1994) 1 QAR 279

The Applicant applied for access to his medical records, one part of which was refused by Regional Brisbane North Regional Health Authority (the Authority), as it included the personal affairs of a third party. The Applicant applied to the Information Commissioner for review.

The Information Commissioner considered that the relevant starting point for an application of section 46 of the FOI Act is section 46(2) of the FOI Act, which has the effect of excluding a substantial amount of information generated within government (deliberative process matter). [35]

In determining the scope of section 46(1)(a) of the FOI Act, the Information Commissioner considered that if the Commonwealth AAT or the Federal Court should confine the action of breach of confidence solely to equity, he would be prepared to revisit the issue. However, he considered that the better view was that the words ‘found an action for breach of confidence’ in section 46(1)(a) of the FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance is placed on one or more of the following causes of action: [43]

  • a cause of action for breach of a contractual obligation of confidence
  • a cause of action for a breach of a equitable duty of confidence
  • a cause of action for breach of a fiduciary duty of confidence and fidelity

In the present case he noted that an action for breach of confidence could only be founded in the independent jurisdiction of equity, as there was no contractual relationship between the parties. [43] He also considered that the terms of section 46(1)(a) require the test of exemption to be evaluated by reference to a hypothetical legal action, with a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff. [44]

Here, the Information Commissioner was satisfied that there was an identifiable plaintiff (the third party), who had standing to sue in respect of the matter and that the information could be identified with specificity. [135]

The Information Commissioner considered and applied the judgement of Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria,49 who distilled the constituent elements of the equitable action for breach of confidence. They consist of four, if not five, criteria;

  • the information is capable of being specifically identifiable as information that is secret, rather than generally available
  • the information has the ‘necessary quality of confidence’
  • the information was received in such circumstances as to import an obligation of confidence
  • there has been an actual or threatened misuse of the confidential information
  • there has been detriment to the plaintiff

Criteria One – Specific identification of the confidential information for which protection is sought

The Information Commissioner found it necessary to specify the information in issue in order to establish that it is secret, rather than generally available, information. [60] He also considered that an explicit description of the information in issue was essential to the framing of appropriate injunctive relief. [62] The Information Commissioner was also satisfied that the information was specifically identified, namely one part of the applicant’s medical records.

Criteria Two – The necessary quality of confidence

The equitable action for breach of confidence is in theory not primarily an action for the protection of confidential information, but for the prevention of unconscionable conduct. [64]

The basis for the court’s intervention is not the information per se but the threatened or actual breach of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. What makes the information potentially confidential is that it has about it a degree of secrecy sufficient for it to be the subject of an obligation of conscience. Information that is common knowledge or publicly available cannot be considered secret, as the confider could not have been said to have placed any special faith in the confidant in making the communication.

Here, the Information Commissioner considered that the information had the necessary degree of secrecy, in that it was not common knowledge, was inaccessible to the general public and was also not mere trivial ‘tittle tattle’. [136]

The third party’s identity was also considered to be eligible for protection as confidential information.50 [137]

Criteria Three – Receipt of the Information in Such Circumstances as to Import an Obligation of Confidence

Here, the third party sought and was given an express assurance that the information imparted as well as their identity would remain strictly confidential, therefore creating an obligation of confidence. [138]

Criteria Four – Actual or threatened misuse of the information

Here, the third party expressly stipulated that the information was not to be conveyed to the applicant. The Information Commissioner considered that disclosure to the applicant would therefore constitute a misuse of the information. [140]

Criteria Five – Detriment

The Information Commissioner was also satisfied that disclosure of the information in issue would cause detriment to the third party. [141]

No defences arose on the facts [142] and ultimately, the Information Commissioner was satisfied that disclosure would found an action for breach of confidence and therefore the information in issue was exempt matter under section 46(1)(a) of the FOI Act. [143

49Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria (1987) 14 FCR 434.
50G v Day [1982] 1 NSWLR 24 per Yeldham J [137].

Last updated: March 26, 2012