Breach of confidence

Overview

The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies2. This right of access is subject to some limitations. These limitations include information which is exempt from release under schedule 3 of the RTI Act.

Information that would found an action for breach of confidence

Schedule 3, section 8 of the RTI Act provides that information will be exempt from release if its disclosure would found an action for breach of confidence.

Decision makers should refer to the Basic Guide to Confidentiality3 if they are not sure whether confidentiality is relevant to their documents or the Annotated Legislation4 for a more detailed discussion of the breach of confidence exemption.

An action for breach of confidence?

An action for breach of confidence can be an action for:

  • an equitable breach of confidence; or
  • a breach of a contractual obligation of confidence.5

Exception - Deliberative process information

There is an exception to the breach of confidence exemption. Schedule 3, section 8(2) states that deliberative process information is not exempt information unless it consists of information communicated by an entity other than the State, an agency, or a person in the capacity of:

  • a Minister
  • a member of the staff, or a consultant to, a Minister
  • an officer of an agency.

What is deliberative process information?

Deliberative process information is information disclosing—

  • an opinion, advice or recommendation that has been obtained, prepared or recorded; or
  • a consultation or deliberation that has taken place

—in the course of, or for the purposes of, the deliberative processes involved in the functions of government.6

Deliberative process refers to the processes of evaluating relevant evidence, expert opinion, and arguments about the merits of competing opinions for the purpose of making a decision related to the performance of the agency’s functions.  It includes contributions to the formulation of policy, as well as the making of decisions under statutory powers.

For more information on deliberative process refer to the Deliberative Process guideline.

Equitable breach of confidence

In order to found an action for a breach of equitable confidence, the information must satisfy four elements:7

  1. The information in question must be identified with specificity
  2. It must have the necessary quality of confidence
  3. It must have been received in circumstances importing an obligation of confidence; and
  4. There must be an actual or threatened misuse of the information.

The fifth element

There will generally be a fifth element where the entity claiming to be owed the confidence is another government body:

5. Disclosure must cause detriment to the plaintiff.

The elements are cumulative; if any of them cannot be satisfied, the information cannot be subject to an equitable obligation of confidentiality.

The cumulative elements

1. Specifically identifiable information

The first element is that the information must be specifically identifiable as secret, rather than generally known or available.8 The more general the information, the harder it will be to show that it was imparted or received in confidential circumstances.9

When making their decision, decision makers must identify the specific information within documents that they consider is confidential.

2. Necessary quality of confidence

The second element is that the information must have the necessary quality of confidence. Marking a document “Secret” or “Confidential” does not automatically give it the required quality of confidence. Decision makers must consider the content and substance of the information.10

The following types of information have been identified as not having the necessary quality of confidence:

  • generally available information in the public domain
  • common knowledge
  • useless or trivial information11
  • evidence of a crime, civil wrong or serious misdeed of public importance12; and
  • information which has previously been disclosed to the applicant13.
Note

Decision makers need to consider whether parts of the document are already common knowledge or generally known, for example because the information has been mentioned in a media statement or in other publicly available information. The relevant business units or areas within the agency may be able to advise on this.

3. Received in circumstances importing an obligation of confidence

The third element is that the information must have been received in circumstances that import an obligation of confidence. It will generally be imposed when the information is given14, either expressly or by implication,15 based on the circumstances. For example, patients and third parties communicate sensitive health information to doctors on the understanding that it will be kept confidential.16

Decision makers will need to consider the circumstances surrounding the supply of the information to determine whether those circumstances as a whole imparted an obligation of confidence.17

Relevant circumstances could include:

  • whether the information was provided for free or in exchange for payment
  • whether there exists and is any past relationship or practices that could lead to an understanding that provided information would be treated confidentially
  • whether the provider of the information has any demonstrable interest in the information or the purpose to which it will be put
  • the nature and sensitivity of the information and the relationship between the parties
  • any warnings or promises that were given or requested about confidentiality18
  • any service or other agreements;19 and
  • any relevant statutory frameworks20.

The key to determining 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’.21

4. Actual or threatened misuse of the information

The fourth element is that there is an actual or threatened misuse of the information. The decision maker will need to determine if release under the RTI Act would be inconsistent with the purpose for which it was received.22 This will depend upon the scope of the obligation of confidence.

An obligation of confidence can be waived by express or implied consent of the confider.23 Agencies may need to consider contacting the confider to determine whether they would object to disclosure of the information. This is particularly the case where the information’s age or character would indicate it may have “lost the sensitivity or value to the confider which made it worthy of protection as confidential information in the first place”.24

5. Detriment – government entity confiders

Where the party claiming to be owed an obligation of confidentiality is a government entity, the general approach is that disclosure of the information needs to result in a detriment in order to establish that the information is subject to an equitable obligation of confidentiality.

Contractual breach of confidence

An action for breach of a contractual confidentiality requires there to be a contract in place. A contract is a specific type of legally binding agreement, and does not include other kinds of agreements, such as Memorandums of Understanding or deeds.

If the agreement is not a contract or the confidentiality clause is not legally binding—for example, if the parties are still negotiating or the clause has expired—there can be no breach of contractual confidence.25

It is also necessary to consider if there has been an exchange of consideration between the parties in relation to the contract. In the absence of some form of consideration, then a confidentiality clause will not be capable of supporting an obligation of confidence.26

The confidentiality clause

The contractual obligation of confidence will generally arise from the terms of a confidentiality clause contained in a written agreement. Decision makers will need to consider the information and the relevant confidentiality clause to determine if the clause applies, as some confidentiality clauses may be limited by subject matter, author, date, or other factors. Some confidentiality clauses may also exclude RTI from the clause's application; if so, release under the RTI Act cannot found an action for breach of contractual confidence.

  • 1 And the Information Privacy Act 2009 (Qld).
  • 2 And Ministers. References in this guideline to an agency include a Minister.
  • 3 https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/decision-making/basic-guide-to-confidentiality
  • 4 https://www.oic.qld.gov.au/annotated-legislation/rti/schedule-3/8-information-disclosure-of-which-would-found-action-for-breach-of-confidence
  • 5 Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66 (Ramsay) at paragraph 66.
  • 6 Schedule 3, section 8(3) of the RTI Act.
  • 7 Ramsay at paragraph 94, adopting previous formulations in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 and Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73 .
  • 8 TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) (TSO08G) at paragraph 18, adopting the reasoning of B and Brisbane North Regional Health Authority (1994) 1 QAR 279 (B and BNRHA)at paragraphs 60-63.
  • 9 B and BNRHA at paragraph 60, adopting Independent Management Resources Pty Ltd v Brown (1986) 9 IPR
    1.
  • 10 B and BNRHA at paragraph 71.
  • 11 TSO08G at paragraph 20.
  • 12 TSO08G at paragraph 21, adopting the reasoning in B and BNRHA at paragraphs 121-131 and following the comments of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434.
  • 13 Shaw and the University of Queensland (1995) 3 QAR 107 at paragraph 16-25; Kupr and Department of Primary Industries (1999) 5 QAR 140 at paragraph 24-25 and 42, decisions made under the repealed FOI Act.
  • 14 Coco v AN Clark (Engineers) Ltd [1968] FSR 415 per Megarry J at 419.
  • 15 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] (1987) 10 NSWLR 86 per McHugh J at 189-190.
  • 16 TSO08G at paragraph 25.
  • 17 Ramsay.
  • 18 Points 1-5 above: Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86; Ramsay.
  • 19 Ramsay
  • 20 Ramsay
  • 21 Pearce and Qld Rural Adjustment Authority; Various Landholders (Third Parties) (1999) 5 QAR 242 at [84].
  • 22 Seager v Copydex Ltd [1967] 1 WLR 923.
  • 23 B and BNRHA at paragraph 105.
  • 24 B and BNRHA at paragraph 106.
  • 25 B and BNRHA at paragraph 45.
  • 26 Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019) (Palmer), referring to B and BNHRA.

Current as at: February 19, 2021