Case 000041. Contents of letters of objection relating to a work permit application - whether information given in confidence - section 26(1)(a) - whether the public interest would be better served by granting rather than refusing access - section 26(3) - whether disclosure would constitute a breach of an equitable duty of confidence - section 26(1)(b)

Case Summary

Facts

The requester sought access to three letters which had been written by representatives of a rival sporting organisation in objection to a work permit application that had been filed on his behalf. Access was refused on the ground that the contents of the letters were confidential.

Decision

Applying the presumption set forth at section 34(12)(b), the Commissioner found that the Department failed to justify its refusal to grant the request for access to all but the concluding paragraph of the first letter. The evidence suggested that the authors had been given an assurance of confidentiality by the Department. However, some of the information provided in their letters was not relevant to the processing of the work permit application. The Commissioner rejected the Department's argument that such extraneous information is generally protected by section 26(1)(a).

Having regard to the requirement that the future supply of further similar information be of importance to the public body, the Commissioner took the view that the purpose of section 26(1)(a) is to protect the flow of information which relates to the exercise by the body of its statutory powers and functions. In the case of a Department, this purpose extends to its Minister's statutory powers and functions, including those arising as a member of Government. The Commissioner was therefore satisfied that it is of importance to the Department to continue to receive information which is relevant to the processing of work permit applications. However, he did not accept that the collection of extraneous information must always be the inevitable consequence of seeking information which is relevant to a decision. Moreover, as the Department did not adequately explain why the supply of relevant information should require confidentiality, the Commissioner was not satisifed that the release of the records at issue would be likely to prejudice the giving of relevant information in the future.

Alternatively, the Commissioner found that the public interest in disclosure outweighed the public interest in refusing to grant access. He accepted that there is a public interest in the Department receiving relevant information about a particular industry or beneficiary of a work permit application. He also recognised that there is a public interest in the proper preservation of confidences. Under the circumstances of this case, however, he found a stronger public interest in (1) promoting openness and transparency in the decision-making process of government; and (2) ensuring fair treatment of applicants for work permit applications and, by implication, their prospective employees. The Commissioner made it clear that the public interest in the proper preservation of confidences cannot be at the expense of fair procedures.

The Commissioner noted that the concluding paragraph of the first letter differed from the general contents of the letters. Applying the tests set out in Coco v. A. N. Clark (Engineers) Limited F.S. R. 415, he found that disclosure would constitute a breach of an equitable duty of confidence. Accordingly, the Commissioner annulled the decision of the Department and made a new decision to grant access to the three letters requested, with the exception of the concluding paragraph of the first letter.

Date of Decision: 09.04.2001

Background:

[1.] In correspondence dated 24 January 2000, Mr. Daniel Reed applied to my Office for a review of the decision of the Department of Enterprise, Trade and Employment ("the Department") to refuse him access to three documents relating to a work permit application that had been filed on his behalf by the Dublin Lightning American Football Club ("the Dublin Lightning"). I accepted the application for review on 18 February 2000. The pertinent background to the review is set out below.

[2.] On or about 2 September 1997, the Dublin Lightning filed a work permit application on
Mr. Reed's behalf for the position of Technical Director of Coaching and Marketing Director. At the time, the Dublin Lightning was formally affiliated with the American Football Association of Ireland (AFAI), which had an exclusive marketing, publicity, and promotional contract with a company called Image Management & Promotion. Image Management & Promotion was headed by Mr. Jim Hutton, who was also the Secretary General of the AFAI. On 18 September 1997, the Work Permits Section of the Department wrote to Mr. Hutton in his capacity as the Secretary General of the AFAI to request the views of his organisation about the application filed on Mr. Reed's behalf or "any subsequent applications from any of [the AFAI's] affiliated clubs." The letter to Mr. Hutton specified that "[a]ny submission(s) that [the AFAI] might make will be considered in the context of deciding whether to issue a work permit in this or any subsequent applications."

[3.] In a reply to the Department dated 25 November 1997, Mr. Hutton indicated that he was reluctant to state categorically that his organisation approved or disapproved of the application, but that the organisation had "reservations" about Mr. Reed which he was willing to share, provided he could do so in "strict confidence". One or more meetings were arranged, followed by the submission of the three documents at issue in this case, described in a schedule of records issued to Mr. Reed as a letter from J. Hutton to B. McCabe, dated
5 February 1998; a letter from S. Sutton to B. McCabe, dated 6 February 1998; and a letter from L. Sleator to B. McCabe, dated 10 February 1998. I note that Mr. Hutton's letter was marked "Confidential". I also note that Mr. Sutton and Ms. Sleator were also AFAI representatives.

[4.] However, by 15 November 1997, the Dublin Lightning had broken away from the AFAI to join a rival organisation known as the Irish American Football League (IAFL). Evidence of the Dublin Lightning's split from the AFAI was promptly submitted by the Dublin Lightning to the Works Permits Section. The evidence included a statement from the League Administrator of the IAFL, Mr. Steven L. Stacher, indicating that there was a severe shortage of people with "coaching experience and the knowledge to pass on that experience." This statement supported the Dublin Lightning's claim in its application that there were "no suitably qualified candidates for [the position of Technical Director of Coaching and Marketing Director] resident in this country."

[5.] On 11 February 1998, the Work Permits Section notified the Dublin Lightning that its application had been refused because of the absence of any evidence of attempts to recruit an Irish or other European Economic Area (EEA) national for the position. The Work Permits Section stated that the Minister for Enterprise, Trade and Employment was "of the opinion that the post could be filled by an Irish/EEA national." The Dublin Lightning appealed from the Department's decision based in part on its argument that consideration of its application had been prejudiced by the Department's use of Image Management & Promotion/the AFAI as a reference. Over two years later, following the intervention of the Office of the Ombudsman on foot of a complaint from Mr. Reed of unreasonable delay, the Department reversed its previous decision and issued Mr. Reed a work permit with an effective date of 14 September 2000. I note, however, that the question of Mr. Reed's entitlement to a work permit was not a matter within the Ombudsman's jurisdiction.

[6.] In the meantime, on 14 July 1999, Mr. Reed filed a request under the Freedom of Information Act, 1997 ("the FOI Act"), for access to any records relating to the work permit application filed on his behalf, including any records of the meetings which took place between the Department and Messrs. Hutton and Sutton. In a decision dated 3 August 1999, the Department granted Mr. Reed's request in part, but refused him access to the February 1998 letters from Messrs. Hutton and Sutton and Ms. Sleator, respectively, on the ground that the contents of these letters were confidential and thus exempt under section 26(1)(a) of the FOI Act. The Department also refused Mr. Reed access under section 10(1)(a) of the FOI Act to any records of the meetings with Messrs. Hutton and Sutton on the grounds that no such records existed. While Mr. Reed has not pursued this element of his original request in his application for review, I feel obliged to state that I have serious concerns about the failure of the Department to keep a record of meetings relating to a matter having serious consequences for one of its clients.

[7.] On 20 September 1999, Mr. Reed appealed for internal review of the decision to withhold the three letters. Mr. Reed argued that he required access to these letters in order to exercise his right to amend any untrue and misleading information that may have been provided by the third parties and, in the interests of natural justice, to refute any allegations that may have been made against him. Upon review, the Department upheld its original decision to refuse Mr. Reed access to the three letters. Mr. Reed's appeal to my Office followed.

[8.] Having accepted the application for review, I examined the file relating to the work permit application, including the three letters requested by Mr. Reed. I also considered the various submissions from Mr. Reed, as well as a submission from the Department dated 4 January 2001 in response to a preliminary view letter from my Office. The third parties were also given the opportunity to make submissions. Following telephone conversations with the third parties, my Office extended the filing deadline for their written submissions by an additional three weeks. However, to date, no further submissions have been received. I therefore have proceeded to a decision on the basis of the information now before me.

Submissions

The Requester

[9.] Mr. Reed restates the arguments that he made when applying for internal review of the Department's decision. He supports his arguments with background information relating to his experience with American football, the development of the sport in Ireland, and his on-going dispute with the AFAI. Mr. Reed also relayed a message from Mr. Cillian Smith of the Dublin Lightning, who had received a letter from the Department approving Mr. Reed's work permit application, but he nevertheless claims that it is "imperative" that the three letters be released. Mr. Reed apparently believes that access to the three letters will shed light on the basis for the Department's original decision to refuse him a work permit. He also still considers it necessary to refute any inaccurate information contained within the letters.

The Department

[10.] In its submission to this Office, the Department directs my attention to its section 15/16 Reference Manual, which outlines the procedures for processing work permit applications. The Reference Manual states that, "Depending on the circumstances of the case, consultation may be necessary with other Departments and organisations (representative bodies, professional associations etc.)." The Reference Manual goes on to say that, "Again, depending on the circumstances, further information or documentation may be requested of the applicant."

[11.] The Department emphasises that the three letters at issue in this case were provided by the Secretary General of the AFAI, who was also the Senior Partner of Image Management & Promotion (Mr. Hutton), the Chairman of the AFAI Executive Board (Mr. Sutton), and the Financial Secretary of the AFAI (Ms. Sleator). According to the Department, it is the norm in the sporting sector for representative bodies to be contacted for input regarding work permit applications. The Department argues that it is important for individuals or organisations, having an interest or, as with the AFAI in this case, a specific role in relation to the sector concerned, to feel free to make their views known to the Department or to bring information to its attention on a confidential basis and reasonably expect that confidence to be respected. The Department maintains that the supply of such information "facilitates full and detailed consideration" of work permit applications, which is required for "soundly based decision making". In the Department's view, "good public administration requires officials to be as widely informed as possible." The Department acknowledges that, where "differing views and divergent opinions are provided", it is incumbent upon its officials "to verify the accuracy of such information and form their own conclusions in the matter." In the case of the Work Permits Section, "such conclusions are open to appeal by the relevant party."

[12.] According to the Department, the decision to issue Mr. Reed a work permit on appeal was not based on any disregard of the information provided in the letters from the AFAI. The Department therefore disputes the preliminary view put to it by my Office that the letters contain information that was misleading or unreliable. Nevertheless, the Department makes the following observations:

"[A] person called upon to provide information in a case such as this may provide more information than a third party reading their input might find relevant. The person may not have previously had any involvement with the relevant scheme and in an effort to be as helpful as possible may provide a good deal of information as they may not be aware of the key piece of information that might be relevant to consideration of a non-statutory scheme. Although some pieces of the information thus provided may prove technically extraneous to the officials assessing same against the criteria of the scheme this Department feels that this information, if provided under an understanding of confidence and through a lack of technical knowledge of the provider, should be protected. Again, the Work Permits Officials have stressed the importance to them of being as widely informed as possible by relevant parties and indeed when one considers the range of sectors in the economy with which they deal on a daily basis it is understandable that up to date input is required from active players in the relevant sectors."

[13.] With respect to the public interest, the Department does not dispute that a policy of disclosure of adverse information that has been given about an individual would tend to contribute to fair and transparent decision making. However, the Department points out that Mr. Reed has been made aware that Mr. Hutton had reservations about him that he would only express in strict confidence and that confidential letters subsequently were received from Mr. Hutton, Mr. Sutton, and Ms. Sleator. Moreover, the Department attaches significant weight to the importance of receiving information about a particular industry or beneficiary of a work permit application. The Department also argues that there is a "strong public interest in respecting the principle of confidentiality and allowing individuals to bring information to our attention on a confidential basis and reasonably expecting that confidence to be respected."

[14.] Lastly, the Department addresses the question, which my Office raised in its preliminary view letter, of whether it may owe the third parties an equitable duty of confidence in this case. The Department accepts that, apart from the concluding paragraph of Mr. Hutton's letter, the general contents of the letters do not have the necessary quality of confidence for the purposes of section 26(1)(b) of the FOI Act.

Findings

Right of Access

[15.] I note at the outset that the three letters at issue were written before 21 April 1998, the commencement date of the FOI Act. By virtue of sections 6(4) and (5) of the Act, a right of access only exists in this case provided that access is necessary or expedient in order to understand records created after that date or that the letters relate to personal information about Mr. Reed. The definition of "personal information" found at section 2(1) of the FOI Act includes "information relating to the employment or employment history of the individual" as well as "the views or opinions of another person about the individual". As the letters were submitted to the Department for consideration in deciding whether to issue a work permit to Mr. Reed, I am satisfied that they relate to his employment history and, on this ground alone, to personal information about him. Accordingly, Mr. Reed has a right of access to the three letters unless they are exempt, and the decision to refuse his request is presumed not to have been justified unless the Department shows to my satisfaction that the decision was justified (section 34(12)(b) refers).

Information Given in Confidence

[16.] Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".

[17.] For section 26(1)(a) to apply, it is necessary for the Department to show four things, viz.

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

The First Two Requirements

[18.] In light of the circumstances in which Mr. Hutton's letter was sent to the Department, I accept that it was given in confidence and on the understanding that it would be treated as confidential. I say this because Mr. Hutton made it clear to the Department before writing his letter that he had reservations about Mr. Reed which he was only willing to discuss in strict confidence and he subsequently met officials of the Department and discussed the matter with them on that basis. The only reasonable inference to be drawn from Mr. Hutton's actions is that he was given an express assurance of confidentiality in relation to his communications with the Department. For reasons which I will explain in dealing with the application of the public interest test, I have considerable misgivings about whether it was appropriate for the Department to allow Mr. Hutton to understand that his comments would not be revealed to Mr. Reed. At this point, I will limit myself to the observation that, as the Freedom of Information Act was enacted on 21 April 1997, it should have been clear to the Department that access to records relating to personal information was not restricted to records created after 21 April 1998 and that the exemption provided for at section 26(1)(a) was subject to a public interest override. Nevertheless, I accept that the first two requirements of section 26(1)(a) are met in this case, at least as regards the letter written by Mr. Hutton.

[19.] The basis on which Mr. Sutton and Ms. Sleator wrote their letters is less clear. Having examined the contents of the letters and taking into account the use which their authors apparently intended the Department to make of them, I am not satisfied that it would have been reasonable, in the absence of an express assurance of confidentiality, for their authors to understand that the contents, or at least the substance of the contents, would not be disclosed to Mr. Reed if the Department intended to rely on the information in the letters as a basis for denying a work permit to Mr. Reed. However, given the connection between the AFAI representatives, I consider it possible that an assurance of confidentiality may nevertheless have been conveyed to Mr. Sutton and Ms. Sleator. In any event, in the light of my findings below, it is unnecessary for me to decide this question.

The Third and Fourth Requirements

[20.] I note that, in addition to providing procedural information on the Work Permits Section, the Department's Reference Manual outlines the general criteria for deciding work permit applications. Despite the Department's insistence that officials need to be "as widely informed as possible", it appears that the only relevant considerations are typically the availability of Irish or other EEA nationals for the vacancy and whether certain disqualifying factors are present. The disqualifying factors relate to the immigration status of the prospective employee or employer and are matters which are readily verifiable by reference to immigration documents or by the Department of Justice, Equality and Law Reform. For instance, a prospective employee who is in deportation proceedings does not qualify for a work permit, but it is not otherwise necessary to establish his or her suitability as a resident of the State.

[21.] In light of the general criteria as outlined in the Department's Reference Manual, I fail to see how at least some of the information provided by the AFAI representatives was relevant to the processing of the application filed on Mr. Reed's behalf or could have been legitimately considered by the Work Permits Section in processing that application. The Department, in effect, admits some of the information was "extraneous", but argues that it should nevertheless be protected. I accept that release in this case would be likely to prejudice the giving to the Department of such extraneous information in the future, but I do not agree that such information is generally protected by section 26(1)(a) of the FOI Act.

[22.] Having regard to the requirement that the future supply of further similar information be of importance to the public body, I take the view that the purpose of section 26(1)(a) is to protect the flow of information which relates to the exercise by the body of its statutory powers and functions. In the case of a Department, this purpose extends to its Minister's statutory powers and functions, including those arising as a member of Government. I am therefore satisfied that it is of importance to the Department in this case to continue to receive information which is relevant to the processing of work permit applications. However, I do not accept that the collection of extraneous information must always be the inevitable consequence of seeking information which is relevant to a decision. For instance, the Department could be more selective when seeking information in cases of this kind by using a standard form to state explicitly what it requires.

[23.] Moreover, the Department has not adequately explained why the supply of relevant information from representative bodies or interested individuals should require confidentiality. In my view, information relating to the availability of Irish or other EEA nationals would not ordinarily be of a sensitive nature. Significantly, the Department does not claim that it is, in fact, the norm for such information to be provided on a confidential basis.

[24.] Although not explicitly raised by the Department, I consider that an argument could be made that an assurance of confidentiality was required in this case to gain the co-operation of the AFAI in accordance with the policy, as also set out in the Department's Reference Manual, that "work permits are generally granted where it is established that the prospective employee: .... is a professional sportsperson and the granting of the permit would comply with the terms of an agreement made between the Department and the relevant sporting organisation". In his telephone conversation with my Office, Mr. Hutton indicated that this was his understanding of the matter and, thus, the mere fact of his organisation's disapproval of the application should have been a sufficient basis for denial or at least a relevant consideration.

[25.] However, as mentioned above, by the end of November 1997, the Dublin Lightning had already notified the Work Permits Section of its split from the AFAI and was no longer an affiliated club. Thus, it appears that, by the time the three letters were written, the AFAI was no longer, if it ever had been, the "relevant sporting organisation" for consultation purposes. Moreover, it is apparent from Mr. Hutton's letter of 25 November 1997 that no agreement between the Department and the AFAI existed at the time. In the circumstances, I conclude that Mr. Hutton was mistaken as to the relevance of his organisation's disapproval of the work permit application filed on Mr. Reed's behalf. In any event, I am not satisfied that an assurance of confidentiality would be necessary in order to induce a sporting organisation to give information which is relevant to a work permit application and, in particular, information as to whether the grant of the application would comply with an agreement between the organisation and the Department.

[26.] In summary, I accept that the release of the extraneous information contained in the three records would be likely to prejudice the giving of further similar extraneous information in the future, but I am not satisfied that it is of importance to the Department to continue to receive such information. Conversely, I am satisfied that it is of importance to the Department to continue to receive information which is relevant to the processing of work permit applications, but I am not satisfied that release of the records at issue in this review would be likely to prejudice the giving of such information in the future. I wish to make it clear, however, that while it is a well-established principle of good administration that decisions should be based on relevant considerations and that irrelevant considerations should be disregarded, I am not taking a position on the merits of the decision to refuse Mr. Reed a work permit or, subsequently, to issue him one.

[27.] I would add that I have a degree of sympathy for Mr. Hutton, Mr. Sutton, and
Ms. Sleator. Their letters to the Department arose because the Department approached
Mr. Hutton in the first place. The evidence suggests that Mr. Hutton (and perhaps Mr. Sutton and Ms. Sleator) even received an assurance of confidentiality. However, the terms of section 26 make it clear that an assurance of confidentiality given by a public body is not conclusive when considering the question of release of information under the FOI Act.

The Public Interest

[28.] Even assuming that the contents of the three letters fall within the scope of section 26(1)(a), I find that, on balance, the public interest in disclosure outweighs the public interest in refusing to grant access (section 26(3) refers). I accept that there is a public interest in the Department receiving relevant information about a particular industry or beneficiary of a work permit application. Moreover, as I stated in Mr. Phelim McAleer of the Sunday Times and the Department of Justice, Equality and Law Reform, Case Number 98058, To Be Published (16 June 2000), "the very terms of section 26 recognise that there is a public interest in the proper preservation of confidences." Under the circumstances of this case, however, I find a stronger public interest in (1) promoting openness and transparency in the decision-making process of government; and (2) ensuring fair treatment of applicants for work permit applications and, by implication, their prospective employees.

[29.] In reaching this conclusion, I have had regard to the following quotation from the decision of the Queensland Information Commissioner in the case of Coventry and Cairns City Council, (1996) 3 QAR 191, at paragraph 36: "If action prejudicial to a person's interests is proposed to be taken by reference to adverse comments from third parties, the common law duty to accord procedural fairness would ordinarily require that the person be informed of the substance of those adverse comments and be given an opportunity of responding to them." In Re Coventry, a letter containing adverse comments on aspects of the requester's performance of his employment duties was forwarded in confidence by a third party to a public official. During the Queensland Information Commissioner's review, the third party strongly objected to the disclosure of the letter at issue to the requester. However, the Commissioner found that the letter was intended to prompt the public official to take "some appropriate action" with respect to the requester. The requester's employment subsequently was terminated. The Commissioner found it "difficult to envisage any meaningful action which [the third party] could have contemplated [the public official and the public body] taking in respect of [the requester] which would not have necessitated disclosure of the letter in issue, or its substance, to [the requester]." Although the Commissioner considered that "a relevant obligation of confidence should be respected as far as possible", he found it neither practical nor necessary to edit the letter at issue. He concluded that disclosure of the full text of the letter was appropriate.

[30.] In this case, the letters from the AFAI were written with the obvious intention of persuading the Department to refuse Mr. Reed a work permit. Subsequently, the Dublin Lightning's work permit application on behalf of Mr. Reed was refused by the Department apparently having regard to the information provided by the AFAI. Moreover, no evidence has been put before me of the steps which the Work Permits Section took "to verify the accuracy of such information and form their own conclusions in the matter" until the appeal was finally processed. It therefore appears that fair procedures were not followed.

[31.] As discussed above, some of the information provided by the AFAI did not relate to the relevant criteria for deciding work permit applications. In its submission, the Department admits that the Work Permits Section's consultation procedures may yield information that proves to be "technically extraneous". However, in view of the Work Permits Section's letter of 18 September 1997 stating that any submissions from the AFAI would be taken into consideration and the Department's insistence that officials need to be "as widely informed as possible" in deciding work permit applications, I cannot exclude the possibility that at least some of even the "technically extraneous" information had an influence on the decision makers.

[32.] In the circumstances, I am of the view that procedural fairness should have required the Dublin Lightning, as the applicant, to be informed of the adverse information provided by the AFAI and to be given an opportunity to respond. I fully accept that there is a significant public interest in the proper preservation of confidences, but this can not be at the expense of fair procedures. Therefore, I find that, on balance, the public interest would be better served by granting rather than refusing access to all but the last paragraph of Mr. Hutton's letter. While Mr. Reed has now been issued with a work permit, I believe that granting such access would encourage fair and transparent decision making by the Department in future cases involving Mr. Reed or others.

[33.] I must emphasise that this case is distinguishable from Mr. AAY and the Department of Social, Community and Family Affairs, Case Number 98103, 2 OIC Dec. 34 (1999), in which I found that the public interest would not be better served by the release of the confidential information at issue. In Case Number 98103, an anonymous letter was used to trigger an investigation. During the investigation, Mr. AAY was informed generally of the allegation made in the letter. I did not consider it necessary that Mr. AAY be given a copy of the letter or the details of the allegation, but I commented that "[d]ifferent considerations would arise, for example, if the Department had withdrawn Mr. AAY's pre-retirement allowance on foot of the allegations."

Duty of Confidence

[34.] As the Department points out in its submission, the concluding paragraph of Mr. Hutton's letter differs from the general contents of the letters. It does not pertain to the work permit application per se, but rather outlines certain parallel intentions that Mr. Hutton had at the time relating to the underlying dispute.

[35.] In Case No. 98058, referred to above, I recognised that situations may arise in which private individuals, in the course of making their views known to a public body, disclose such details of their own private affairs as might impose an obligation of confidence in relation to those details. Section 26(1)(b) of the FOI Act protects such confidences by providing for mandatory refusal of a request in cases where a disclosure would constitute a breach of a duty of confidence owed in equity. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R. 611) in which Megarry, J. stated as follows:

'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'"

[36.] With respect to the concluding paragraph of Mr. Hutton's letter, I accept that the intentions expressed concern a private or secret matter. As noted above, unlike the remainder of the contents of the three letters, the information disclosed in the concluding paragraph does not pertain to the work permit application per se, but rather outlines certain parallel intentions that Mr. Hutton had at the time relating to the underlying dispute. Therefore, I also accept that the information was imparted in circumstances imposing an obligation of confidence on the Department. Lastly, in light of this obligation of confidence, I accept under the circumstances that its disclosure would be an unauthorised use of that information to
Mr. Hutton's detriment. Accordingly, I find that its disclosure is prohibited under section 26(1)(b).

Decision

[37.] Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and make a new decision to grant access to the three letters requested, with the exception of the concluding paragraph of Mr. Hutton's letter of 5 February 1998.

INFORMATION COMMISSIONER

09 April 2001