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.
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.
An action for breach of confidence can be an action for:
In order to found an action for a breach of equitable confidence, the information must satisfy four elements6:
The elements are cumulative; if any of them cannot be satisfied, the information cannot be subject to an equitable obligation of confidentiality.
The first element is that the information must be specifically identifiable as secret, rather than generally known or available7. The more general the information, the harder it will be to show that it was imparted or received in confidential circumstances.8
When making their decision, decision makers must identify the specific information within documents that they consider is confidential.
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 information9.
The following kinds of information have been found to have the necessary quality of confidence:
The following types of information have been identified as not having the necessary quality of confidence:
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.
The third element is that the information must have been received in circumstances that import an obligation of confidence.
It does not require that the receiver of the information expressly promised to keep it confidential; the obligation can be inferred from the circumstances.14 For example, patients and third parties communicate sensitive health information to doctors on the understanding that it will be kept confidential.15
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.16
Relevant circumstances could include:
When considering obligations of confidentiality that apply to information produced to or held by government, the public interest in having access to the information will be a relevant consideration.
As part of determining whether an obligation of confidence applies, decision makers should consider whether there is a public interest in the information being released and, if so, how strong that interest is.22
The existence of a public interest in releasing the information does not mean this element cannot be met. It is just one consideration, although it may be quite a strong one, to take into account when determining whether an obligation of confidence applies.23
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.24 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.25 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”.26
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.27
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.28
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.
Contractual confidentiality is not absolute. "A contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of an "action for breach of confidence.""29
Further, where one party to a contractual obligation of confidence is a government agency with a duty of public accountability, the law has recognised that the obligation may be limited to the extent necessary to serve the duty.30
Confidentiality can be subject to right to information laws31 and public authorities are taken not to bind themselves out of giving a proper account of their functions—including by way of giving information directly to the public32.
In some circumstances, decision makers will need to consider the nature of the information; how it came into existence, for example whether it was produced incidentally as part of the contract's performance, co-created by the agency, or created solely by the other party; or any legitimate community interest in accessing the information.
This was discussed in Palmer and Townsville City Council33, where the information claimed to be subject to a contractual obligation of confidentiality had not been created and communicated solely by a private party in exchange for a promise by Council not to disclose it. "Rather, it [was] a mutual agreement co-authored—and thus essentially co-owned—by Council, and the broader community Council represents."34 On that basis, taking into account the above principles, disclosure of the information would not have been a breach of the claimed obligation of confidence.
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:
Deliberative process information is information disclosing—
—in the course of, or for the purposes of, the deliberative processes involved in the functions of government.35
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.
Current as at: December 10, 2019