Schedule 3, section 8 of the Right to Information Act 2009 (Qld) (RTI Act) exempts from release information that would found an action for breach of confidence. This can be an equitable or contractual breach of confidence.1
It is clear, as a matter of general law, that the jurisdictional bases for an action for breach of confidence extend to cases in which contracts are relied on to protect confidential information and cases in which the obligation of confidence arises in equity.2
When considering whether the Breach of Confidence Exemption applies, it is useful to consider the following preliminary questions:
Schedule 3, section 8(2) of the RTI Act contains an exception to the Breach of Confidence Exemption.
[Decision makers] who approach [the exemption] should direct their attention at the outset to [the exception] which has the effect of excluding a substantial amount of information generated within government from the potential sphere of [its] operation.3
The exception provides that deliberative process information is not exempt information unless it consists of information communicated by an entity other than:
Deliberative process information means4 information disclosing:
If the exception applies, information cannot be exempt under the Breach of Confidence Exemption. For more information on deliberative process information please refer to the ‘Public interest test applied - contexts’ section of the Annotation.
The Breach of Confidence Exemption must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an equitable or contractual obligation of confidence.5
In practice, this means it is important to consider the source of the relevant information.
An equitable obligation of confidence will generally arise only where information has been communicated from a third party (who is the hypothetical plaintiff) to an agency or Minister. It will not ordinarily be relevant to internal departmental communications or to information communicated from the agency (or Minister) that has received the access application to a third party (except where it is comprised of a re-communication of confidential information).
To be subject to a contractual obligation of confidence, the relevant information must fall within the scope of the agreement. Like an equitable obligation, purely internal communications will generally not be included, except where they re-communicate confidential material. Depending on the circumstances, it may be relevant that information was communicated by the agency or Minister to the third party.
The Breach of Confidence Exemption can relate to an action in equity for breach of confidence or an action for breach of contractual confidentiality.6
It will be important to identify which applies to the information in question, as each requires different criteria to establish. Where a breach of contractual confidentiality cannot be established, it may be necessary to consider if a breach of equitable confidentiality can be established.
Unlike equitable confidentiality, contractual confidentiality does not have a defined set of cumulative criteria which must be satisfied. The nature of the obligation will depend on the terms of the contract. However, below are some of the requirements that must be established to show that information is subject to a contractual obligation of confidentiality.
In B and BNRHA Information Commissioner Albietz said:
An express contractual obligation of confidence ordinarily arises in circumstances where the parties to a disclosure of confidential information wish to define clearly their respective rights and obligations with respect to the use of the confidential information, thereby enabling the parties to anticipate their obligations with certainty.
The contractual obligation of confidence will generally arise from the terms of a confidentiality clause contained in a written agreement.
In some circumstances a contractual obligation of confidence can be implied between parties who do not have a subsisting contractual relationship.7 For example, where confidential information is provided to one party as part of seeking to enter a business arrangement which is not successful, and the receiver later uses the information themself.8
The agreement to keep information confidential must be supported by consideration. If there is no consideration, it cannot amount to a contractual obligation of confidence.9
A mere promise to keep certain information secret, unsupported by consideration, is incapable of amounting to a contractual obligation of confidence, and its effectiveness as a binding obligation would depend on the application of the equitable principles discussed in more detail below.10
Consideration, put simply, is the 'price' of the contract. It does not have to be money or material goods.11 It can, for example, be an action to be carried out or a mutual promise,12 but it must not be something that predates the agreement.13
The confidentiality agreement can apply to information specified in the agreement—which can include other contracts or non-contractual agreements—and/or to the terms of the contract itself, but these cannot pre-date the contract.
The specifics of the agreement need to be considered to determine if they cover the information being considered. It will also be necessary to consider any other relevant parts of the contract, to identify if anything renders the confidentiality agreement inoperable in the circumstances. For example, the confidentiality agreement may have ‘carve out’ provisions, ie exceptions to the confidentiality agreement. These will not render it inoperable except as is provided for in those clauses.14 Carve outs may, for example, provide that the confidentiality provisions do not apply if an application is made under access legislation such as the RTI Act, or to information that has been made public, for example published by the parties on a website. The mere presence of carve outs does not undermine the operation of the agreement so that the parties can no longer be considered bound by an enforceable obligation of confidence.15
The confidentiality agreement must still be in operation at the time the information is being considered. If it contains an expiry date which has passed, for example, the confidentiality agreement will no longer apply.
Adani Mining Pty Ltd v Office of the Information Commissioner & Ors,16 found that no public interest considerations can be taken into account when applying schedule 3, section 8(1) of the RTI Act to contractual obligations of confidence imposed upon a government agency—apart from the possibility of disclosure arising from the nature of ‘responsible government'.17
However, it may be a relevant consideration if there is evidence that demonstrates that:
These actions would constitute “an improper attempt to avoid public disclosure and to frustrate the public interest [set out in the RTI Act]”.19 The person asserting that these actions occurred, however, must prove them; otherwise it should be assumed that the parties acted lawfully.20
Information is conveyed in confidence when one party (the confider) imparts the information to another (the confidant), on the express or implied understanding that the information has been provided for a restricted purpose.21
The confidant has an obligation to keep the information confidential and a failure to do so is referred to as 'breach of confidence'. The Courts will restrain a confidant or hold them accountable for any breach of confidence.22
Ramsay Health Care Ltd v Information Commissioner & Anor23 identified four24 cumulative elements necessary to establish an equitable obligation of confidence. The reasoning in Ramsay raises doubt as to whether there is a fifth element of detriment, necessary where the confider is a non-government entity.
All relevant elements must be satisfied for information to be subject to an equitable obligation of confidentiality.
1. Relevant information must be capable of being specifically identifiable as information that is secret, rather than generally available
The specific information claimed to be confidential must be identifiable. If it cannot be identified, then there can be no obligation, or threatened breach, of confidence.25 An identifiable use of the specific confidential information—or circumstances from which a potential use of the information can be inferred—must also be identified.26
For agencies, this will generally be the documents or information claimed to be confidential, and release under the RTI or IP Act respectively.
2. The information must have the necessary quality of confidence – ie it must not be trivial or useless, and must have a degree of secrecy sufficient for it to be subject to an obligation of conscience
The information must have the necessary quality of confidence to be protected in an action for breach of confidence.27 The fact that a document is marked secret or confidential does not automatically make it so; the content of the document is what counts.28
For information to have this quality of confidence it must not be common knowledge or be in the public domain,29 or be mere 'trivial tittle-tattle'30. The fact that information is simple will not prevent it from being confidential,31 although being obvious or commonly known will.32 Where information is partly common knowledge, it must also consist of some independent thought or be the product of some commercial twist to be confidential.33
To satisfy this requirement it must be shown that the ‘circumstances are of sufficient gravity’34 to warrant equitable protection:
... the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. ...
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia.35
Information may also have the necessary quality of confidence if it is possessed of sufficient ‘intrinsic importance’36 to attract the operation of an obligation of conscience binding the receiver not to disclose it. If information does not possess the necessary quality of confidence, it cannot form the basis of an equitable obligation of confidence.
3. The circumstances of the communication must create an equitable obligation of confidence
An obligation of confidence will be established when:
… the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.37
Generally an obligation of confidence is imposed at the time the information is imparted38 and it can be imposed expressly or by implication,39 based on the circumstances.
The existence and scope of any obligation of confidence will be determined both by what the entity receiving the information knew and what they ought to have known in the circumstances.40 For example, even when there is no express mention of confidentiality (or otherwise), certain kinds of discussions can be ones which are generally assumed by the participants will be treated as confidential.41
The touchstone for assessing whether this requirement is satisfied ‘lies in determining what conscionable conduct requires of an agency in its treatment of information claimed to have been communicated in confidence’.42
In B and BNRHA,43 the Information Commissioner stated that this requirement must be considered on the basis of an evaluation of the whole of the relevant circumstances in which the information was imparted to the agency claiming to be bound. The relevant circumstances will include (but are not limited to) the nature of the relationship between the parties, the nature and sensitivity of the information, and circumstances relating to its communication.44
The courts have varied the extent and nature of the obligation depending on whether the information is personal, commercial, or government information. For example, the obligation not to disclose personal information is generally more extensive than the obligations attaching to trade secrets, which are different again from those attaching to government information.45
In relation to government information, Daubney J in Ramsay found that:
…In the case of information produced to and held by a government agency, it can be accepted that the public interest in having access to the particular information is one of the factors to be considered when ascertaining whether or not that information is held under an obligation of confidence. Indeed, it may be a factor to which considerable weight attaches. But it is not the sole determining factor. It needs to be weighed in the mix of all the relevant circumstances under which the information was imparted to ascertain whether the information is held subject to an equitable obligation of confidence.46
4. Disclosure of the information to the access applicant must constitute an unauthorised use of the confidential information
A confidant's disclosure of confidential information inconsistent with the purpose for which it was received will be a breach of confidence.47 The same can be true for a third party who is given confidential information. If they know it is confidential and still use or disclose it in a way inconsistent with its confidentiality, they can be liable for a breach of confidence.48
This means if an agency receives information from someone other than the original confider that it knows is subject to an obligation of confidence it may need to treat it as confidential.
5. Disclosure must cause detriment to the plaintiff
As noted above, there is doubt as to whether this requirement applies to non-government entities.
Daubney J in Ramsay noted with approval the observations by Gummow J in Smith Kline & French:49
The basis of the equitable jurisdiction to protect obligations of confidence lies … in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained … The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss. To look into a related field, when has equity said that the only breaches of trust to be restrained are those that would prove detrimental to the beneficiaries?
However, where the party claiming to be owed the obligation of confidentiality is a government entity, then the general approach is that the criteria of detriment must be satisfied in order to establish that the information is subject to an equitable obligation of confidentiality.
Last updated: February 19, 2021