Case 020425. Request for reference supplied to Civil Service and Local Appointments Commissioners ("the CS&LAC") by requester's previous employer - whether equitable duty of confidence owed to supplier of an employee reference to the public body - section 26(1)(b) - public interest

Case Summary

Facts

Following her successful application for a position with a Health Board, Dr X made a request under the FOI Act for a reference supplied to the CS&LAC by her previous employer, Dr A, a private practitioner located in the UK. Dr X was successful in the competition but her appointment seems to have been delayed. The CS&LAC refused access to the reference under section 26(1)(b).

Decision

With the exception of the factual elements of the reference, the Commissioner accepted that the CS&LAC owed an equitable duty of confidence to Dr A as Dr A understood from the wording of an assurance of confidentiality used by the CS&LAC that his comments would not be released without his consent. (As Dr A was not a "member of the staff of a public body" the provisions of section 26(2) could apply).

The Commissioner decided that the public interest in according procedural fairness would not excuse the CS&LAC in breaching its duty of confidence as Dr X had been successful in her application. The Commissioner commented on the inappropriateness of the wording used by the CS&LAC which had since been revised. He added that he may have reached a different decision had Dr X not been successful and not been given an opportunity to comment on the contents of the reference.

The Commissioner was also satisfied that the assurance of confidentiality given by the CS&LAC in its letter to Dr A was not a deliberate attempt to circumvent the provisions of the FOI Act.

Date of Decision: 23.01.2003

Our Reference: 020425

23.01.2003

Dr X

Dear Dr X

I refer to your application for a review of the decision of the Office of the Civil Service and Local Appointments Commissioners ("the CS&LAC"), to refuse access to a reference ("the report") supplied to it by your previous employer Dr A.

Background

I have now completed my review of the CS&LAC's decision. In carrying out that review I have had regard to your correspondence and telephone conversations with Mr Nutley of this Office. I have also had regard to the CS&LAC's submissions of 13 September 2002 and 11 November 2002, its telephone contacts with this Office and I have examined the report from Dr A. I have written to Dr A offering him a period of three weeks in which to make a submission on this case. However I received no reply from Dr A.

I note that in an effort to settle this review you took up the CS&LAC's offer of a discussion to attempt to allay your concerns regarding the future use of the report which is held on your personnel file. As you are not satisfied with the outcome of that discussion I have decided to conclude this review by way of a binding decision.

Scope of Review

My review is concerned solely with the question of whether the decision of the CS&LAC under the Freedom of Information Act ("the FOI Act") to refuse access to the report supplied by Dr A is justified.

Findings

Before setting out my findings I believe it would be useful to recall the circumstances in which the CS&LAC received the report and to give a general description of the report in question.

Following your application for the position of Surgeon with [...], the CS&LAC wrote to your former employer, Dr A on 6 November 2000 requesting that he complete a standard report concerning your employment with him. Dr A completed the report on November 11 2000 and returned it to the CS&LAC. Following your appointment to the position of Surgeon you queried the delay in your appointment and subsequently made a request under the FOI Act for access to Dr A's report. In response to your request the CS&LAC contacted Dr A who indicated that he was not agreeable to the disclosure of the contents of the report. The CS&LAC decided to refuse access to the report on the grounds that it contained confidential information given in confidence to the CS&LAC and that disclosure of Dr A's comments would constitute a breach of a duty of confidence.

The report in question is a standard form which provides space for hand-written comments and contains a section dealing with factual information i.e. your name, address, dates of employment, etc. The report also contains a list of questions with questions 1 and 2 relating to further factual information and questions numbered 3 to 6 relating to Dr A's view of your performance while working with him.

The CS&LAC refused access to the report supplied by Dr A under section 26(1)(a) and section 26(1)(b) of the FOI Act.

I have examined the contents of the report. As I have explained, most of the information in the report is of a factual nature about you. I do not accept that this factual information which is clearly known to you, can be said to be confidential and therefore neither section 26(1)(a) or section 26(1)(b) can apply to the factual parts of the report, i.e. the entire first page of the report, the standard questions numbered 1 to 6, Dr A's response to questions 1 and 2 and Dr A's initials, title and official contact details. I will therefore confine my findings to Dr A's hand-written responses to questions numbered 3 to 6.

Section 26(1)(b)

Section 26(1)(b) of the FOI Act provides that a request for access to a record shall be refused if :

"disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law".

In this case I have considered whether there is an equitable duty of confidence, that is, a "duty of confidence...provided for...by law", which was owed by the CS&LAC to Dr A.

In order for an equitable duty of confidence to exist, three conditions must be met, viz;

• the information contained in the record must have the necessary quality of confidence and
• the information must have been imparted in circumstances imposing an obligation of confidence and
• there must be an unauthorised use of that information to the detriment of the party communicating it.

In previous decisions I have explained that to have a quality of confidence records must concern private or secret matters rather than information which is trite or which is already in the public domain. I have examined the contents of the report. It is clear that Dr A's responses to questions numbered 3 to 6 inclusive, concerned as they are with his opinion of you while in his employment, are not trite or routine comments and have the necessary quality of confidence.

In relation to the circumstances in which the information was given to the CS&LAC I note that the report which was sent to Dr A was headed "Strictly Confidential" and included the following paragraph:

"This Office will protect information received on an agreed understanding of confidentiality, consistent with the Freedom of Information Act. Such information will enjoy protection in the normal course under section 26 of that Act.No such information provided by you will be released by us under that Act against your wishes."

It is clear from the final sentence of this paragraph that Dr A understood that the comments made in the report would be treated by the CS&LAC as confidential and would not be disclosed without his consent. Given this undertaking I am satisfied that Dr A's comments were imparted in circumstances imposing an obligation of confidence on the CS&LAC.

I wish to comment on the inconsistency of the last sentence of this paragraph with the reference to section 26 of the FOI Act. While section 26 provides protection for confidential information obtained by public bodies it is also subject to the provisions of section 26(3) which requires that the information be released if, on balance, the public interest requires it. Therefore it is not the case that public bodies cannot release information against the wishes of the person who supplied that information. Section 29 of the FOI Act provides that where a public body decides to release confidential information in the public interest then the supplier of that information has a right to appeal that decision to my Office. I believe it was inappropriate for the CS&LAC to give such a guarantee of confidentiality in the light of the general aim of the FOI Act to enable access "to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies". I note that the CS&LAC has since revised its wording on employer report forms to read:

"Please note that information provided by you may have to be released by us under the Freedom of Information Act, 1997".

I consider that this is a far more appropriate wording given that in certain circumstances the public interest may require release of a report to the candidate. I have commented further on this aspect below.

I must also consider whether disclosure of Dr A's comments would be an unauthorised use of that information to the detriment of Dr A. I have already found that Dr A was given an assurance of confidentiality and that there was an obligation of confidence on the CS&LAC. Dr A has also indicated that he did not wish to see comments which he believed were made in confidence disclosed to you. In such circumstances I am satisfied that disclosure would be an unauthorised use of the comments made by Dr A. In considering whether detriment can be said to occur to Dr A I have had regard to the comments by the Queensland Information Commissioner in his decision Re. B and Brisbane North Regional Health Authority in which he stated :

"It appears , however that detriment is fairly easily established. In particular, it is not necessary to establish that threatened disclosure will cause detriment in a pecuniary sense: 'detriment can be as ephemeral as embarassment...loss of privacy or fear...Moreover in Attorney-General v Guardian Newspapers, Lord Keith of Kinkel said : 'I would think it is sufficient detriment to the confider that information given in confidence is to be disclosed to persons to whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way."

Given the nature of the comments, the circumstances in which the information was imparted to the CS&LAC and Dr A's desire that his comments not be disclosed, I am satisfied that it can be said that detriment would occur to Dr A by disclosure of his comments.

I find therefore, that an equitable duty of confidence exists and that section 26(1)(b) applies. In coming to my finding I am satisfied that the wording of the assurance of confidentiality used by the CS&LAC in this case was not a deliberate attempt to circumvent the provisions of the FOI Act.

Public Interest Defence

Although not stated in the FOI Act, it is well established that there are certain limited circumstances where the duty of confidentiality may be breached in the public interest, for example to reveal crimes, wrongdoing or danger to the public. I have considered whether such a situation exists in this case.

There is a public interest in candidates for competitions being accorded procedural fairness. Procedural fairness requires that candidates be given an opportunity to address adverse comments in a report where that report is influencing the decision of an appointments board. I consider that this public interest is considerably less where, in a case such as yours, the candidate is successful in the competition. While I note that you were not given an opportunity to address the adverse comments in the report, the CS&LAC deemed that you were suitable for the position of Surgeon. It seems to me therefore that no significant weight was attached to Dr A's comments and certainly not enough to dissuade the CS&LAC from appointing you.

You have pointed out that your appointment seems to have been delayed as a result of the comments in Dr A's report. During the course of this review I asked the CS&LAC to provide information regarding the time scale of your appointment. It replied that Dr A's report and the report of your medical examination were received in the section responsible for the competition on 17 November 2000. A report was requested from your then employer, the .... Health Board on 4 July 2001 and the CS&LAC recommended you for appointment to the ... Health Board on 26 July 2001.

The CS&LAC added that while deliberations around the content of Dr A's report would have been a contributory factor to the length of time taken to process your application it was not the sole factor. The CS&LAC indicated that other factors such as staff turnover, the work levels of the section at the time and administrative priorities would have also contributed to the delay. I have been informed by the CS&LAC that prior to your appointment you were employed on a temporary basis as a Surgeon on the same salary scale to that of a permanent Surgeon. It seems to me therefore that you would not have suffered any significant disadvantage, in terms of eligibility for promotion, financially, or otherwise from any delay that was caused by the comments in Dr A's report and this factor is not sufficient to justify a breach of a duty of confidence owed by the CS&LAC to Dr A.

You have also expressed concern over the possible future use of Dr A's report which is currently held on your personnel file. During the course of my review I have been assured by the CS&LAC that the report in question was sought from Dr A for use in assessing you for a particular position, i.e. the position of Surgeon and that the report would not be used in future competitions. On the other hand you hold that there is no guarantee that this is the case or that the recruitment policies of the CS&LAC will not change at some point in the future. However, to counter balance this view, I would expect that even if this were to be the case, your performance in your current position would carry much greater weight in this respect. Having said that, I have already commented that fair procedures would require that candidates be given an opportunity to address adverse comments in reports on them which are influencing the decision of an appointments board. It would seem that there is a direct conflict between this and upholding the equitable duty of confidence which is owed to Dr A. In this case I have attached considerable importance to the fact that you have been successful in the competition and that the comments of Dr A did not adversely affect the CS&LAC's assessment of you. As such I do not believe that this element of the public interest argument is sufficiently strong for the duty of confidence to be breached in this case.

In assessing any possible public interest defence I must also consider the public interest in public bodies such as the CS&LAC maintaining duties of confidence owed to third parties who are requested to provide confidential information. I must also consider the adverse effect that disclosure may have on the CS&LAC receiving honest and frank comments in reports from a candidates employer which are required by the CS&LAC in order to assess the suitability of candidates for positions in the public service. Having regard to all of the circumstances outlined above I find that there is no sufficient public interest defence which would excuse the CS&LAC in breaching its duty of confidence owed to Dr A.

I wish to add that had you not been successful in the competition as a result of the adverse report from Dr A and bearing in mind that you had not been given an opportunity to address the adverse comments in his report, then I would have had to consider whether the public interest in according procedural fairness required that the duty of confidence be breached on the ground that to maintain such a duty would be unreasonable in the circumstances.

As I have found that section 26(1)(b) applies I do not consider that it is necessary for me to consider the application of section 26(1)(a).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby vary the decision of the Office of the Civil Service and Local Appointments Commissioners and direct that access be granted to the report with the exception of Dr A's written responses to questions numbered 3 to 6.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner