Access to records relating to a reference supplied to the HSE by a former employer of Ms. Y - whether disclosure of the information concerned would constitute a breach of an equitable duty of confidence - whether public interest considerations relevant in deciding whether disclosure would breach equitable duty of confidence - fair procedure and the public interest - fair procedure and equity - whether disclosure is "unauthorised" - section 26(1)(b).

Case Summary

Facts

The requester, Ms. Y, had been placed second on a panel of eighteen for a post with the Health Service Executive and was notified in writing by the HSE of her placement. Ms. Y was found to be satisfactory from the medical point of view and she also provided a satisfactory Garda Clearance Report. The HSE sought personal references in respect of Ms. Y from four previous employers; in the case of three of these (released on foot of her FOI request), the references were positive. The HSE relied on section 26(1)(b) of the FOI Act as the legal basis for the decision to withhold the one remaining reference. Section 26(1)(b) of the FOI Act applies in circumstances where "disclosure of the information in question would constitute a breach of a duty of confidence". The withheld records consist of (a) a one page hand-written note of a telephone call between the HSE and the X Organisation and (b) a two page standard personal reference form sent by the HSE to the X Organisation and completed by a member of staff of the X Organisation.

Decision

The HSE and the Organisation both contend that to release the records at issue would constitute a breach of a duty of an equitable duty of confidence, owed by the HSE to the Organisation, and that the refusal of the records is justified by reference to section 26(1)(b) of the FOI Act.

The Commissioner clarified her role in relation to the conduct of reviews by her Office. The Commissioner accepts that in conducting a review she should not purport to make findings on matters which would properly be matters for the courts; neither should she purport to "make" new law as a court might do. However, the Commissioner is clear that in conducting a review it is not sufficient that she accept facts and circumstances at face value. In conducting a review, the Commissioner is generally required to look behind the facts and circumstances relevant to the FOI decision under review and to test whether these facts and circumstances support the decision already made. The extent to which this testing is necessary will vary from one case to another.

The judgment of the Supreme Court in the McK case makes it clear that, in conducting a review under section 34 of the FOI Act, the Commissioner must have regard to the constitutional rights of the parties; the Supreme Court's judgment observes that the FOI Act falls "to be interpreted in accordance with the Constitution". Thus, in making a review decision, the Commissioner is required to have regard to the parties' constitutional rights It is relevant in this regard to note that Ms. Y's submission included a claim that her right to fair procedures (which has a constitutional dimension in this jurisdiction) is very relevant to the decision to be made by the Commissioner.

It is the Commissioner's understanding of the law on confidentiality, as it currently stands in this jurisdiction, that it is founded in a recognition of the public interest served by the preservation of confidences but that, in turn, it may be outweighed by some other countervailing public interest which favours disclosure. Accordingly, establishing whether disclosure would amount to a breach of an equitable duty of confidence involves some form of balancing between the public interest in preserving confidences and whatever countervailing public interests there may be. That this is the position is clear from a number of Supreme Court judgments in which the law on confidence has been considered.

The key question in this case is whether public interest considerations may be taken into account in determining whether disclosure to Ms. Y would constitute a breach of a duty of confidence; and the Commissioner is satisfied that the answer to this question is "Yes". Following on from this, the question then is one of whether the public interest considerations favouring disclosure to Ms Y are sufficiently strong to outweigh the public interest in preserving confidences.

The Commissioner draws attention to the fact that in some other jurisdictions whose legal systems are based on the Common Law, and with whose FOI legislation we have much in common, their Information Commissioners take the view that an exemption based on a breach of confidence is subject to public interest considerations. Set out in the decision are two examples of such decisions, one from the United Kingdom and the other from Queensland, Australia. Also, a recent Labour Court adjudication (Recommendation No. 18925, 25 June 2007) commented on what is required by fair procedure in circumstances rather similar to those applying in this present case. It is relevant to note that the Labour Court's findings in this case are based on standards of fairness, equity and natural justice.

The Commissioner takes the view, in the circumstances of this case, that the key test of whether disclosure will constitute a breach of an equitable duty of confidence is the test of whether such disclosure is unauthorised. The Commissioner believes there is an equitable obligation on the HSE to ensure its dealings with Ms. Y comply with fair procedure (which, in this jurisdiction, has a constitutional dimension). While the HSE is bound by an equitable duty of confidence vis à vis the Organisation, the extent of that duty is conditioned by the rules of equity. Thus, the HSE is bound by the duty of confidence not to disclose the Organisation's information to a third party (other than Ms. Y). On the other hand, the Commissioner takes the view that the equitable duty of confidence in this instance cannot be understood as requiring the HSE to adopt a position which is itself at odds with the requirements of equity. The purpose for which the HSE acquired the information from the Organisation was to assist in its employment selection process. A requirement of that process (at least at the stage when the reference was sought) was that there be fair procedure; in the circumstances of this case, this meant Ms. Y was entitled to be made aware of any negative or adverse comment regarding her. Therefore, it is the Commissioner's view that it would have been entirely legitimate for the HSE to divulge to Ms. Y the substance of whatever comments were made about her by the Organisation.

On the basis of the very particular facts and circumstances attaching to this case, the Commissioner finds that the disclosure to Ms. Y by the HSE of the substance of the information provided by the Organisation is not "unauthorised". Accordingly, the Commissioner finds that section 26(1)(b) of the FOI Act does not apply to such disclosure.

The Commissioner annulled the decision of the HSE and directed that it release the records in question subject to certain deletions.

Date of Decision: 31.10.2007

DECISION UNDER THE FREEDOM OF INFORMATION ACTS, 1997 - 2003 IN RELATION TO CASE NUMBER 060030 MS. Y AND THE HEALTH SERVICE EXECUTIVE

Background:

The requester, Ms. Y, acting through her solicitors, applied to the Information Commissioner on 9 February 2006 for a review of the decision of the Health Service Executive ("the HSE") to refuse her request under the Freedom of Information ("FOI") Act for access to certain records. The records requested related to the handling of a job application made to the HSE by Ms. Y.

In making the original FOI request on 18 August 2005, Ms. Y's solicitors stated that Ms. Y had applied to the HSE in December 2004 for a post as __________________ with the _____________ Hospital, ______; that she attended for interview with the HSE; that on 6 January 2005 she was notified in writing by the HSE that she was placed second on a panel of eighteen. Ms. Y's solicitors went on to note that, "despite repeated representations made on her behalf", Ms. Y had not yet been offered employment; the reason for this, according to the solicitors, was that a former employer had, apparently, given Ms. Y an unfavourable reference:

"Members of the HSE staff have advised my client that the difficulties in her commencing work with the Health Service Executive relate to a reference sought and/or obtained by the HSE from my client's former employer, the X Organisation. Ms. Y worked for the X Organisation for a two year period between 2001 and 2003. She is shocked and alarmed that any adverse reference might be made by the Organisation in the context of a reference or otherwise and/or that her employment with the HSE may have been jeopardised by the content of any such reference."

Ms. Y's solicitors framed the FOI request in the following terms:

"... a copy of all documentation in the power, possession or procurement of the Health Service Executive touching upon and/or concerning the interview, selection and/or appointment of Ms. Y to a position within the Health Service Executive up to and including copy references sought and/or obtained by the HSE in the context of the said recruitment process."

In its initial decision dated 8 September 2005 the HSE granted the request in part and refused access in part; it relied on the exemption at section 26(1)(b) of the FOI Act for its decision to withhold records. On 4 October 2005, Ms. Y's solicitors applied to the HSE for an internal review of the decision in so far as it related to the records withheld. In its internal review decision of 1 November 2005 the HSE varied the original decision and released additional records. The HSE explained that the records withheld initially "related to four references obtained from third parties with regard to Ms. Y's previous employment"; the HSE had contacted each of these referees and three of the four had now agreed to the release of the reference provided; however, the other referee did not consent to release and the HSE had decided to affirm the decision to withhold this reference. Again, the HSE relied on section 26(1)(b) of the FOI Act as the legal basis for the decision to withhold the one remaining reference. Section 26(1)(b) of the FOI Act applies in circumstances where "disclosure of the information in question would constitute a breach of a duty of confidence".

On 9 February 2006 Ms. Y's solicitors applied to the Information Commissioner for a review of the HSE's decision.

Scope of the Review

Amongst the records released were copies of letters from the HSE, all dated 14 January 2005, to four former employers, including the X Organisation ("the Organisation"), requesting a reference in respect of Ms. Y. Following the internal review decision, the only records being withheld were those relating to one of the references, that provided by the Organisation. The withheld records consist of (a) a one page hand-written note of a telephone call between the HSE and the Organisation and (b) a two page standard personal reference form sent by the HSE to the Organisation and completed by a member of staff of the Organisation. While the note at (a) is undated, it appears to have been written prior to the provision by the Organisation of the completed reference form; the latter is dated 28 January 2005.

The issue in this review is whether the HSE is correct in its decision to refuse access to Ms. Y to those records, relating to the provision by the Organisation of a personal reference concerning Ms. Y, and described at (a) and (b) above.

Process of Review

For the purposes of this review, the HSE has provided my Office with a copy of the records at issue as well as a copy of its entire file relating to Ms. Y's job application.

In the normal way, all of the parties to the review were invited to make submissions to my Office in support of their positions. The contents of these submissions is summarised further below. In the case of Ms. Y, a submission on her behalf was made by her solicitors along with the initial review application. In the case of the HSE, it opted not to make any substantive submission and relied on the rationale set out in its internal review decision of 1 November 2005. However, on 28 September 2006 it responded to a request from my Office for clarification on some factual matters and included with this clarification were some legal arguments in support of its decision.

In the case of the Organisation, it made two substantive sets of legal submissions, dated 6 September 2006 and 12 July 2007. In each case, the Organisation's submission was in response to preliminary views of the relevant Investigator in my Office. In addition, there was an exchange of correspondence in October/November 2006 between my Office and the Organisation arising from an attempt by my Office to have clarification on a particular matter. My Office sought clarification from the Organisation as to whether the content of the disputed records had ever been conveyed to Ms. Y, either during the course of her employment with the Organisation or subsequently. The Organisation declined to clarify this matter and argued that the clarification sought was not relevant to my review and that it was not clear what statutory basis I had for seeking such clarification. Furthermore the Organisation argued that, in the absence of clarification, I was not entitled to conclude, as suggested by the documentation then available to me, that Ms. Y had not been informed of the specific contents of the disputed records. In the event, and as set out below, the documentation would appear to be fairly clear-cut on this matter.

Preliminary Matters

It is important to have regard to the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies. This is something which the Courts have acknowledged. For example, McKechnie J., in his judgment in Deely and the Information Commissioner (text of judgment is available at www.oic.ie), had this to say about the FOI Act:

"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State."

[...]

... the clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....

It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."

This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v The Information Commissioner & Ors, where Mr Justice Fennelly commented:

"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen."

The underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. It is also relevant to draw attention to section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the HSE the onus of showing, to my satisfaction, that the decision to refuse access to the records at issue in this case is justified in terms of the provisions of the FOI Act.

Given the passage of time since the original FOI request was made, it is relevant to point out that this review, under section 34 of the FOI Act, is a de novo review based on the law and the circumstances as they apply at the time of the making of the review decision. That this is so is clear from the judgment of the High Court in the case Minister for Education and Science v Information Commissioner - the text of this judgment is available at www.oic.ie - where Mr. Justice O'Caoimh, commenting on the nature of a review under section 34 of the FOI Act, said that "importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner" and that "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision". This position was endorsed by Mr Justice Quirke in his recent judgment in The National Maternity Hospital and The Information Commissioner (text of this judgment is also available at www.oic.ie). Accordingly, the decision to be made by me is whether or not release of the relevant records, at this point, is prohibited by the exemption at section 26(1)(b) of the FOI Act.

Before dealing with the exemption claimed by the HSE, and with the submissions of the parties, I draw attention to the fact that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. I also have to refrain from disclosing information which an interested party contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. All of this means that there are some constraints on what I can say in relation to the records at issue.

Facts and Circumstances

Set out below are the facts and circumstances relevant to this case in so far as I have been able to establish them in the course of this review.

Ms. Y

On the basis of her written job application and interview, Ms. Y was placed second on a panel of 18 people. The HSE wrote to her on 6 January 2005 with this information; it said "offers of work will be made to candidates in the order which they are placed on the panel"; explained that "offers of employment will be subject to satisfactory references, medical and submission of ... educational and training qualifications"; and the letter concluded: "Congratulations on your success".

Subsequently, Ms. Y was found to be satisfactory from the medical point of view; and she also provided a satisfactory Garda Clearance Report. The HSE sought personal references in respect of Ms. Y from four previous employers; in the case of three of these (released on foot of her FOI request), the references were positive.

In making the FOI request of 18 August 2005, Ms. Y's solicitors put on record that Ms. Y had been "advised" by "[m]embers of the HSE staff" that the failure to offer her employment arose from an "adverse reference" in relation to her from the Organisation. In any event, following the release to her of the positive references, and in the knowledge that her medical, Garda clearance and qualifications were in order, it would have been obvious to Ms. Y that the basis for the HSE's failure to offer her employment was the provision of a negative or adverse reference by the Organisation. In the course of this review, the HSE confirmed to my Office that this was, in fact, the case; in a letter of 28 September 2006 clarifying certain matters, the HSE said that, on the basis of the comments by the Organisation, it had "decided not to continue processing Ms. Y for employment in the HSE". There is no record that the HSE communicated this decision in writing to Ms. Y. In any event, it is significant that Ms. Y is now aware (a) that the HSE sought a personal reference from the Organisation in respect of her; (b) that the Organisation provided a reference which was negative or adverse and (c) that the Organisation's reference caused the HSE not to proceed with an offer of employment to her.

Ms. Y contends that during the period of her employment with the Organisation she was never made aware of any difficulties with her performance; rather, she contends that when she left the employ of the Organisation (by her own volition) she "received positive comment on her contribution" during her period with the Organisation. While the Organisation has declined to comment on whether or not Ms. Y had been made aware of any unhappiness or negative assessment of her work, it does appear to me, from the information available, that she was not made aware of any such assessment.

Ms. Y and/or her solicitors wrote to the Organisation on a number of occasions in the period April - December 2005 seeking a copy of the reference provided by the Organisation. The Organisation's initial response, by letter dated 26 April 2005, was to say that it had not provided any reference; on 11 October 2005 the Organisation corrected this by acknowledging that it had supplied a reference; on 25 October the Organisation wrote to say it not retained a copy of its reference; and on 15 December 2005 it wrote to say that "all references provided by the X Organisation are given in confidence and therefore I cannot consent to allowing the HSE to furnish you with a copy ... as requested."

The Organisation/Health Service Executive

There are two matters of potential relevance regarding the relationship between the Organisation and the HSE: the first has to do with the specific circumstances in which the Organisation provided the personal reference on Ms. Y; and the second has to do with the nature of the wider relationship between the two organisations.

Provision of Reference

On 14 January 2005 the HSE wrote to the Organisation (as well as to three other previous employers) requesting a personal reference in respect of Ms. Y. The reference was to be provided by way of a standard reference form which the Organisation was asked to complete. The account of events following next is not disclosed in the contemporary records; rather it is based on statements made to my Office in the course of this review.

According to the HSE, a representative of the Organisation rang the HSE to say that it was not providing a reference. According to the HSE, its staff member was given to believe that the Organisation had certain relevant information; the HSE representative offered that this information could be communicated by the Organisation "on the strictest understanding of confidentiality". On this basis, according to the HSE, it received certain information from the Organisation's representative and this information was recorded on an undated hand-written note. According to the HSE, the Organisation's representative would not have known that the HSE representative was making a note of the information. Again according to the HSE, its representative offered the Organisation "an assurance of confidentiality" should it complete and return the HSE's reference form. On this basis, according to the HSE, the Organisation completed the reference form on 28 January 2005 and returned it to the Health Service Executive.

The HSE account above is corroborated in broad terms by a separate statement made by the Organisation's representative. According to this statement, the Organisation's representative began the telephone discussion by stating that the contact was being made "in the strictest confidence"; the Organisation says it was given an assurance that the communication was "in the strictest confidence". Having given certain information orally, the Organisation's representative agreed to complete the standard reference form (provided by the HSE) as the HSE representative said it "needed this to complete the hiring process and [to] make sure [it] had everything on file". The Organisation's representative states, in relation to the reference form, that "if I had been in any doubt that this information would go further I would not have completed the written reference".

The HSE has pointed out that the standard reference it then used "offered no guarantee of confidentiality" and that this is a reflection of the HSE's awareness of the views of my Office in regard to taking up employment references. "This means", according to the HSE, "that [it] was not routinely offering confidentiality for all references submitted. It is important that this case is viewed on its own individual merits and it is acknowledged that specific mitigating circumstances apply in this instance".

Whatever the circumstances in which the personal reference from the Organisation was sought and provided, it is a fact that Ms. Y has been made aware (a) that such a reference was sought, (b) that such a reference was provided, (c) that the reference provided was negative or adverse and (d) that the reference has had the consequence of causing the HSE not to make her an offer of employment.

Wider Relationship of HSE/The Organisation

The Organisation is a voluntary body which describes itself as "the leading national [provider] of dementia specific supports, through a national network of 81 services partly funded by the HSE. On average, only 70% of the operating costs of the services are covered by HSE funding leaving a deficit of €3 million which must be raised annually ..." [Press Release, 8 February 2007]. The HSE has confirmed, in the course of this review, that it regards its relationship with the Organisation as one based on a contract for services; the HSE has provided my Office with a copy of a "Service Level Agreement" between itself and the Organisation (_____ Branch). While I do not find it necessary to establish this as a categoric fact, it would seem most likely that the work undertaken by Ms. Y, while employed by the Organisation, was funded by the HSE on the basis of a contract for services.

I note that the Organisation contends that its relationship with the HSE is not one which may be characterised as based on a contract for services. For the purposes of this review, it is not necessary to resolve this matter. What may be relevant, however, is that the Organisation is a partner in the provision of public health services and its relationship with the HSE is that of a service provider/funder. In the mixed model of health service provision in Ireland, the Organisation is but one of many such voluntary bodies -for example, the Irish Wheelchair Association and St. Michael's House - to which the delivery of specific services is contracted out. As evidence of the very close relationship between such voluntary bodies and the HSE, very many of them are themselves subject to the FOI Act as if they were, in fact, public bodies. The fact that the Organisation is not yet subject to the FOI Act, while other comparable bodies (such as the Irish Wheelchair Association and St. Michael's House) are, may be no more than an oversight.

Section 26(1)(b) - Breach of Duty of Confidence

The HSE and the Organisation both contend that to release the records at issue would constitute a breach of a duty of confidence, owed by the HSE to the Organisation, and that the refusal of the records is justified by reference to section 26(1)(b) of the FOI Act. As the submissions of the parties to this review all revolve around the application of section 26(1)(b), it is relevant at this point, before dealing with the submissions, to outline the nature of the section 26(1)(b) exemption.

Section 26(1)(b) states that:

"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if_

(a) [...], 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.

The HSE's position is that it owes an equitable duty of confidence to the Organisation in respect of the records at issue. This is a position with which the Organisation agrees.

For section 26(1)(b) to apply in this case, disclosure of the records concerned must amount to a breach of an equitable duty of confidence. 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.'

It is clear from their submissions that both the HSE and the Organisation are in agreement with this representation of the law governing a breach of an equitable duty of confidence.

Submissions

In setting out in summary form the material submitted in this review, I do not address explicitly each and every one of the points made; however, all submissions have been carefully considered. Lest there should be any doubt about it, neither does the inclusion in this summary of a particular point made by any of the parties imply that I accept its accuracy or relevance. However, I am satisfied that all the relevant matters are considered and dealt with in the section below headed "Analysis".

Ms. Y

In her submission Ms. Y says that, following the interview, she had been given to believe by individuals from within the HSE that "employment would be available to her in relatively early course"; but this did not happen. The reasons for not being offered employment, she says she was told, was because of a "bad" reference from the Organisation. She also says that she "experienced difficulty in other employment applications" which, she believes, "also related to the issue of the Reference [from the Organisation]".

In terms of legal arguments, Ms. Y makes the following points;

• FOI legislation had been in place for more than six years at the relevant time, and it was clear from existing review decisions of the Information Commissioner that employment references were "documents the release of which would and/or could be directed under" the FOI Act.
• In the light of the above, it was "inappropriate and improper" for the HSE to have given any assurances of confidentiality to a third party referee; in seeking the references from the Organisation, the HSE and its staff "knew or ought to have known" that confidentiality "could not be assured and/or that the reference would be available for disclosure under the provisions of the [FOI] Act".
• "An individual when requested to provide a reference is subject to restrictions imposed at Common Law in terms of the extent to which it, he or she can comment adversely on the character of the individual. The provision of a reference in circumstances where statements contained therein are not based on fact and/or where no or no adequate enquiry has been made prior to the furnishing of the said reference can sound in an action in negligence."
• Any person attending for an employment interview with a public body is entitled to the benefit of fair procedures; "that benefit should extend to a knowledge of all the information before [the body] so that he or she has an effective right of reply. That is so irrespective of whether or not the reference is sought and obtained from a private person or a public body."

Health Service Executive

The HSE submission is that set out in its internal review decision of 1 November 2005. The HSE contends that to release the records would be to breach an equitable duty of confidence owed by it to the Organisation. In support of this, the HSE applies the test from the Coco case (see above) and finds (1) that the information in the records at issue has the necessary quality of confidence; (2) that the information was imparted in circumstances imposing an obligation of confidence and (3) that to release the records would be an unauthorised use of the information to the detriment of the party which provided it. The HSE notes that it asked the Organisation if it would consent to the release of the records but that this consent was not given.

The HSE notes that it is not claiming that all such references are sought and obtained on an understanding of confidentiality. However, it argues that this case must be seen in the light of its "own individual merits". In this regard, the HSE notes that the information provided by the Organisation, and now disclosed in the records in question, relates to "issues [which] did not arise until after Ms. Y had left their employment". The HSE argues that it would not have been given this information by the Organisation in the absence of its agreeing to confidentiality.

The Organisation

The Organisation argues that to release the records at issue to Ms. Y would amount to a breach of an equitable duty of confidence and that this is prohibited by section 26(1)(b) of the FOI Act.

The Organisation's submissions deal in detail with the question of whether the public interest has any bearing on the applicability of section 26(1)(b). It points out that, whereas section 26(1)(a) does have an explicit public interest override [at section 26(3)], the section contains no reference to the public interest in relation to section 26(1)(b).

The Organisation raises the issue of whether public interest considerations play any part in deciding whether a duty of confidence exists and whether a public body (or the Information Commissioner) can have regard to public interest considerations as part of its assessment of whether a duty of confidence exists. On this, the Organisation outlines two approaches: the first is to say that the public interest plays no part in determining whether or not a duty of confidence has been created (though the public interest may be relied upon as a defence for a breach of a duty of confidence); the second approach is to say that public interest considerations are relevant "in the decision whether information is confidential at all in the first place". The Organisation argues that, in Ireland, the former approach is the correct approach:

"The law prevents any consideration of the public interest as part of deciding whether information is governed by a duty of confidence in the first place".

Furthermore, it argues that section 26(1)(b) does not "transpose" all of the rules of equity governing disclosure of information; it argues:

"that section 26(1)(b), by making the breach of duty criterion the only basis for the non-disclosure of a record, does not empower a public body (or the Commissioner in this Review) to disregard that duty by reference to considerations of the public interest outside of the section since it expressly omits this separate equitable criterion from its provisions".

Also, in this same context, the Organisation argues that:

"in the event that the Commissioner enters into a consideration of the 'public interest' in this Review on any criterion outside of the narrow confines of section 26(1)(b), the Commissioner is acting ultra vires, irrationally, in breach of law and in breach of natural and constitutional justice."

The Organisation's submissions deal also with the issue of establishing the confidentiality of the communications it had with the HSE in relation to Ms. Y; and it deals in particular with the fact that there is no contemporaneous evidence of an express agreement as to confidentiality. The Organisation invokes the tests set out in the Coco case and, in particular, the following from the judgment of Megarry J.:

"It seems to me that if 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 an equitable obligation of confidence".

In this same regard the Organisation goes on to note, again following the "reasonable man" approach, that "the courts in Ireland may recognise an equitable duty of confidence where one of the parties does not even know that information is confidential but where a court finds that he ought to have known (constructive notice)".

Finally, in this regard, the Organisation stresses the approach which views the equitable duty of confidence as grounded in a "moral obligation" rather than in agreement or mutual assurances.

The Organisation's submissions deal also with the issue of the unauthorised use of confidential information (one of the tests used to establish whether there has been a breach of a duty of confidence). In particular, the Organisation draws attention to the requirement that a recipient of confidential information should not use it for any purpose other than that for which it was provided; to do so would be unauthorised and give rise to a breach of the duty of confidence. The Organisation cites the following, from the judgment of Keane J. in Winterthur Swiss Insurance Co. v The Insurance Company of Ireland plc [1988]:

"It is obviously an abuse of this power and of the relationship of confidence and trust between the parties if this information is divulged to those other than those to whom it might legitimately be divulged".

Analysis

I have no difficulty in accepting that, in general terms, the Organisation's communications with the HSE in relation to Ms. Y were confidential and that for the HSE to disclose the contents of these communications to a third party would be a breach of a duty of confidence owed by the HSE to the Organisation. However, what is at issue here is whether disclosure of the contents of these communications by the HSE to Ms Y  would be a breach of a duty of confidence.

It is noteworthy in this review that the HSE has declined to make any substantive submission in support of its decision; it has done no more than to assert (a) that it owes a duty of confidence to the Organisation and (b) that to grant Ms. Y's request would amount to a breach of that duty of confidence. The Organisation, on the other hand, has made very detailed submissions and it is proper that I should address its key arguments in what follows.

Role of Commissioner

It is clear from the submissions of the Organisation that it envisages reviews by my Office, under section 34 of the FOI Act, as being conducted within quite limited boundaries. The Organisation appears to believe that, in conducting a review, my Office should take the situation at face value and not look behind events or circumstances. In relation to section 26(1)(b), in particular, the Organisation warns that:

"in the event that the Commissioner enters into a consideration of the 'public interest' in this Review on any criterion outside of the narrow confines of section 26(1)(b), the Commissioner is acting ultra vires, irrationally, in breach of law and in breach of natural and constitutional justice."

I accept that in conducting a review I cannot purport to make findings on matters which would properly be matters for the courts; neither can I purport to "make" new law as a court might do. However, I am clear that in conducting a review it is not sufficient that I accept facts and circumstances at face value. I am clear that, in conducting a review, I am generally required to look behind the facts and circumstances relevant to the FOI decision under review and to test whether these facts and circumstances support the decision already made. The extent to which this testing is necessary will vary from one case to another.

Where an FOI Act exemption is based on an objective test [such as section 24(2) which gives mandatory protection to a record containing information prepared or obtained for intelligence or security purposes] then there is little need to look at the facts or circumstances surrounding its creation. However, where an FOI Act exemption is based on a test which is not particularly objective, and requires the exercise of judgement, then there will be a far greater need to look critically at the relevant facts and circumstances. One example of the latter is the provision relating to access by parents or guardians to the personal records of their minor children - covered by section 28(6)(a) and S.I. No. 47 of 1999 - where the test is based on a judgement as to whether release will serve the best interests of the child concerned. When an FOI case of this kind, involving access by a parent to the personal records of his child, came before the Supreme Court on appeal (see N.McK and the Information Commissioner - judgment available at www.oic.ie), that Court remitted the case to my Office with the specific stipulation that the new review be conducted "in accordance with the correct test and in light of all of the circumstances".

The judgment of the Supreme Court in the McK case makes it clear that, in conducting a review under section 34 of the FOI Act, I must have regard to the constitutional rights of the parties; the Supreme Court's judgment observes that the FOI Act falls "to be interpreted in accordance with the Constitution". Indeed, in its judgment in McK, the Supreme Court found that my Office had taken an "incorrect approach" to the constitutional rights of the review applicant. It is clear, therefore, that while I as Information Commissioner cannot determine any party's constitutional rights, I am nevertheless required to have regard to those rights in making a review decision. Were I to adopt an approach to the conduct of reviews along the lines proposed by the Organisation, I am satisfied that this would be to abdicate from the requirements laid on my Office by the Oireachtas and as confirmed by the Supreme Court.

It is relevant in this regard to note that Ms. Y's submission includes a claim that her right to fair procedures is very relevant to the decision to be made by me. In the Irish context, to invoke fair procedures is to invoke the principle of constitutional justice arising under Article 34 of the Constitution. Therefore it seems to me, following the ruling of the Supreme Court in McK, that in my decision I am required to take a view on the relevance of this claimed constitutional right.

The main argument of the Organisation and of the HSE, on the other hand, is that disclosure of the information would amount to a breach of an equitable duty of confidence. In reviewing the decision of the HSE, and in order to be satisfied that this reliance on equity is justified, it will be necessary to be clear as to what are the rules of equity and to test whether the facts and circumstances of the case support the public body's reliance on equity.

Public Interest Considerations

A key issue in this review is whether, and if so to what extent, public interest considerations are relevant in determining whether information is confidential, whether a duty of confidence exists and whether disclosure of the information would be a breach of a duty of confidence.

Put simply, the primary position of the Organisation is that section 26 makes no reference to section 26(1)(b) being subject to a public interest test or any public interest consideration and this is in contrast with section 26(1)(a) which is expressly subject to a public interest test. Accordingly, argues the Organisation, section 26 should be taken at face value and it should be accepted that it is not subject to any kind of public interest test or consideration. However, if this approach is not accepted, the Organisation argues that any potential role for the public interest is in terms of the "public interest defence"; on its view, the public interest defence is invoked to excuse an actual breach of a duty of confidence but "has no role in defining 'a breach of a duty of confidence' in the first place". The Organisation acknowledges that there is a view that public interest considerations are relevant in the decision whether information is confidential "in the first place"; but it dismisses this view as not reflecting the current law in Ireland.

It is my understanding of the law on confidentiality, as it currently stands in this jurisdiction, that it is founded in a recognition of the public interest served by the preservation of confidences but that, in turn, it may be outweighed by some other countervailing public interest which favours disclosure. Accordingly, establishing whether there is a duty of confidence involves some form of balancing between the public interest in preserving confidences and whatever countervailing public interests there may be. That this is the position is clear from a number of Supreme Court judgments in which the law on confidence has been considered. In his judgment in NIB V RTÉ [1998], Keane C.J. said:

"The English authorities indicated that the appropriate approach for the courts was to engage in a balancing exercise, described as follows by Goff L.J. in A.G. v Guardian Newspapers No. 2 (1990) ... :-

'...although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. ... It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.'

[...]

While ... it would be unwise to attempt a formulation of the defence of public interest which would be applicable in every case, it can be said with confidence that the 'balancing' approach suggested by the English authorities can be adopted in this jurisdiction in a case such as the present."

This theme was taken up by Hardiman J. in his Supreme Court judgment in O'Callaghan v Mahon & Ors [2005]. In brief, this case concerned the right of Mr. O'Callaghan, a party appearing before the Tribunal of Inquiry into Certain Planning Matters (the "Mahon Tribunal"), to have access to documents recording prior oral and written statements made by Mr. Tom Gilmartin and which Mr. O'Callaghan sought for the purposes of cross-examination of Mr. Gilmartin; the Tribunal refused access to these statements on grounds of confidentiality. Hardiman J. also cited Goff L.J. in A.G. v Guardian Newspapers No. 2 on the broad principle that information is confidential provided, amongst other things, "it would be just in all the circumstances that [the confidant] should be precluded from disclosing the information to others". Hardiman J. then noted that Lord Goff recognised certain limitations on this principle, including that "[c]onfidentiality may be negated in the public interest".

There is a view in some quarters that the countervailing public interest must relate to the exposure or avoidance of wrongdoing; but it is my understanding that the countervailing public interest extends to include the maintenance of "the principles of justice". Again, this is a matter taken up by Hardiman J. in O'Callaghan v Mahon & Ors [2005] where he commented:

"In my view, the maintenance of what Denham J. described as the 'principles of justice as they are understood in this jurisdiction' is every bit as much a part of the public interest as the exposure of wrongdoing. Indeed, in many cases the exposure of the unreliability of a witness will itself amount to the detection of wrongdoing of a particularly noxious sort, one that taints public justice. This, of course, will not be so in every case where evidence proves unreliable. ."

In the present case one must first look closely at the precise scope and nature of the claim to confidentiality advanced, and determine whether the disputed material is indeed confidential. One must then consider whether such degree of confidentiality as may be found to exist is or is not outweighed by the public interest, based fundamentally on constitutional considerations, in according fair procedures to the applicant in the circumstances in which they are claimed."

In that same judgment, Hardiman J. takes this analysis further:

"To invoke the criteria for the existence of confidentiality set out in the citations above from Lord Goff, I do not believe that it 'would be just in all the circumstances' to keep prior statements secret from an impugned party. Indeed, I believe that it would be positively, and very gravely, unjust. For the same reason, I do not believe that the secrecy of these perhaps vital materials can possibly arise from any 'obligation of conscience arising from the circumstances in or through which the information was communicated ...'. Indeed, I believe that every prompting of what I might call a legally informed conscience impels one in quite another direction."

I acknowledge that the concerns which prompted the O'Callaghan case were weightier than those arising in Ms. Y's FOI case. While the scale of concern may be different, and while the area of the law on confidence is inherently difficult, I am nevertheless satisfied that a public interest consideration is part of the exercise to be carried out when deciding whether or not a duty of confidentiality applies.

Section 26(1)

I accept that there is some confusion within section 26 of the FOI Act in as much as section 26(1)(a) is stated [at section 26(3)] to be subject to a public interest test whereas no such statement is made in the case of section 26(1)(b). Normal principles of statutory interpretation would dictate that, where an override exists in relation to one set of circumstances but not another, then it must be taken to be the intention of the legislature that no override should apply to the excluded set of circumstances. However, given the strength of case law on the existence of the public interest considerations, I consider that section 26(3) cannot be taken to have excluded those considerations in the context of the FOI Act since public interest considerations form a necessary part of the test in deciding whether there is a breach of a duty of confidence provided for by law. Indeed, my Office has always taken the view that section 26(1)(b), while it may not [as Professor Maeve McDonagh puts it in Freedom of Information Law, 2nd ed., 2006, P. 345] have a "statutory public interest test for records coming within" its scope, does nevertheless have a public interest dimension; and this is an approach which Professor McDonagh appears to support.

In the light of the above, I am not persuaded by the Organisation's argument that the public interest (if it is relevant at all) is relevant only in terms of a defence for an actual breach of a duty of confidence, but does not undo the fact that there has been a breach of a duty of confidence. As I understand the law in this area, this is a distinction without a difference. The key question is whether public interest considerations may be taken into account in determining whether disclosure to Ms. Y would constitute a breach of a duty of confidence; and I am satisfied that the answer to this question is "Yes". Following on from this, the question then is one of whether the public interest considerations favouring disclosure to Ms Y are sufficiently strong to outweigh the public interest in preserving confidences.

I believe it is particularly relevant to note that in some other jurisdictions whose legal systems are based on the Common Law, and with whose FOI legislation we have much in common, their Information Commissioners take the view that an exemption based on a breach of confidence is subject to public interest considerations. Set out below are two examples of such decisions, one from the United Kingdom and the other from Queensland, Australia.

United Kingdom Case

Decision Notice FS50065853, dated 28 September 2006, of the UK Information Commissioner dealt with a request for information on investments made by Wolverhampton City Council (the Council) in its role as administrator of a pension fund. The Council had refused to disclose certain information on the basis that it was subject to a confidentiality agreement with various investment organisations. Section 41 of the UK's FOI Act, relied upon by the Council, exempts information from release where it has been obtained by a public body from any other person and "the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person." The UK Commissioner accepted that the information in question, which was covered by a contractual confidentiality clause, might be exempt under section 41 of the UK Act. However, the Decision notes:

"... the Commissioner does not accept that a confidentiality clause will necessarily mean that all information caught by the clause should be, or will be considered confidential. To accept such a tenet would essentially allow public authorities to contract out of their obligations under the [FOI] Act. The Commissioner will therefore look behind the clause to the nature of the information concerned with a view to considering whether the clause should stand for each particular section or topic."

The UK Commissioner also commented:

"However, the duty of confidence is not absolute. The courts have recognised three broad circumstances in which information may be disclosed in spite of a duty of confidence. These include where the disclosure is consented to by the confider, where disclosure is required by law and where there is a public interest in disclosing the information which overrides any duty of confidence which may be owed.

There are no issues regarding consent, law or crime in this case. This leaves a consideration of the public interest. The Commissioner must therefore balance the public interest in disclosing the information against the public interest in maintaining the duty of confidence, with a view to deciding if the duty of confidence should be maintained."

The UK Commissioner identified that "the central tenet for the public interest in disclosing information in this case lies in the transparency and accountability of public bodies in their decisions and actions in investing public money". In the event, the Commissioner decided that "the public interest in disclosing fund level information overrides the public interest in upholding any duty of confidence the Council owes to the investment organisations."

Interestingly, under the UK FOI Act most of the exemptions are themselves subject to an explicit public interest override while a minority of exemptions are described as "conferring absolute exemption" and are not governed by the Act's "internal" public interest test; section 41 of the UK Act is one of those provisions which confers absolute exemption. It is clear, therefore, that in Decision Notice FS50065853 the UK Commissioner's application of public interest considerations arose from within the law on confidences rather than from the FOI law.

Queensland Case

In his decision in the case of Kupr and Department of Primary Industries (27 September 1999), the Queensland Information Commissioner dealt with facts and issues which are quite similar to those raised in this present review. The decision dealt in detail with the application of section 46(1)(a) of the Queensland FOI Act which is similar to section 26(1)(b) of the Irish FOI Act. Section 46(1)(a) of the Queensland Act provides that "matter" is exempt from disclosure if "its disclosure would found an action for breach of confidence". The following summary of the Kupr decision is taken from that provided by the Queensland Information Commissioner:

"The applicant sought access to two referee reports from previous supervisors, which were relied upon to the applicant's detriment in a selection process for employment as a Field Officer with the Queensland Boating and Fisheries Patrol. The respondent agency claimed that the referee reports were exempt matter under ... s.46(1) of the FOI Act.

Substantial parts of the two referee reports had been disclosed to the applicant by a member of the interview panel during the selection process, who felt that the applicant should be given the opportunity to respond to adverse comments by the referees. Those parts could no longer be considered confidential information vis-à-vis the applicant; however, the Information Commissioner considered whether the disclosure of those parts had been in breach of an equitable obligation of confidence imposed on the respondent, such that equity would restrain further disclosure of the information (in written form) in breach of the obligation. (In circumstances where the grant of an equitable remedy would not be futile, a defendant would not ordinarily be permitted to avoid an equitable obligation where the only asserted ground for avoidance arose by virtue of the defendant's own conduct in breach of the equitable obligation.)

While it was not clear that an express assurance was given to the referees that their reports would be treated in confidence as against the applicant, the Information Commissioner was satisfied that the comments made when the reports were sought were such as to lead both referees to believe that their reports would be treated in confidence. However, in the particular circumstances of the case (whereby the selection panel proposed to lower the applicant's position in the order of merit derived from the selection process, by reference to the adverse comments of referees), the Information Commissioner found that the disclosure to the applicant of those parts of the reports was in accordance with the requirements of procedural fairness, and that equity would not restrain disclosure of those parts. Thus, those parts of the referee reports already orally disclosed to the applicant did not qualify for exemption under s.46(1)(a) ... of the FOI Act.

The Information Commissioner found that the small portions of each report that had not been orally disclosed to the applicant retained the necessary quality of confidence to be the subject of an equitable obligation of confidence, and that the requirements of procedural fairness did not necessitate the disclosure of those portions to the applicant. ..."

In his decision in the Kupr case, the Queensland Commissioner makes clear that in the context of a claimed equitable duty of confidence it is proper for the Information Commissioner to look at the facts and circumstances of the particular case in order to test whether the case is one in which disclosure would amount to a breach of a duty of confidence. The Queensland Commissioner cited a passage from one of his own earlier decisions - "B" and Brisbane North Regional Health Authority (1994) - as follows:

"There will be cases where the seeking and the giving of an express assurance as to confidentiality will not be sufficient to constitute a binding obligation, for example if the stipulation for confidentiality is unreasonable in the circumstances, or, having regard to all of the circumstances equity would not bind the recipient's conscience with an enforceable obligation of confidence ..."

Further, and citing a different earlier decision - Hamilton and Queensland Police Service (1994) - the Queensland Commissioner observed:

"Circumstances may be encountered where the duty to accord procedural fairness clashes with an apparent duty to respect the confidentiality of information obtained in confidence, for example, where a government decision-maker proposes to make a decision which is adverse to the rights or interests of a citizen, on the basis of information obtained in confidence from a third party."

In the Hamilton decision, the Queensland Commissioner expressed the view that the requirements of procedural fairness will vary, depending on the circumstances of the case, and that not every unsuccessful applicant for public employment will be entitled to a statement of the basis on which it is proposed to take an adverse decision and be given an opportunity to respond. However, where an applicant otherwise meets all of the selection criteria but it is proposed to refuse the application on the basis of adverse material obtained from a third party, the Queensland Commissioner's view is that procedural fairness requires that the applicant be informed of the substance of the adverse material and be given an opportunity to answer it.

Applying the logic of his earlier decisions to the facts of the Kupr case, the Queensland Commissioner noted: that Mr. Kupr was an external applicant for a public service position; that he was short listed for interview; that he was interviewed with a view to establishing an "order of merit" list from which positions would be filled over a 12 month period; that, references apart, he would have been well placed on the "order of merit" for appointment to one of the positions. In the light of these facts and circumstances, the Queensland Commissioner took the view:

"While the issue is not free from doubt, I consider that by the time Mr Kupr reached the stage of having been allotted a 'well placed position' on the 'order of merit' list after consideration of his application for employment and his performance at the selection interview, the Department was required to accord him procedural fairness prior to lowering his position on the 'order of merit' list by reference to adverse comments made by third parties."

As it happens, the Queensland Commissioner was satisfied that the Department had met its obligation under fair procedure to the extent that it had already disclosed to Mr Kupr the substance of the adverse comments. Indeed, it appears that the Department disclosed significant parts of the referees' comments in an almost verbatim manner and linked the comments to particular referees.

In terms of testing whether disclosure of the referees' comments would give rise to a breach of an equitable duty of confidence, the Queensland Commissioner identified the test of "unauthorised use" as the key test. (The tests identified by the Queensland Commissioner appear to be broadly similar to those contained in the Coco judgment; the test of "unauthorised use" is described as requiring that "the information must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it".) The Queensland Commissioner found that such disclosure was not unconscionable and stated that he did "not believe that equity would have restrained [the Department] from (or penalised it for) disclosing the adverse comments in the way [it] did". Furthermore, the Queensland Commissioner took the view that disclosure of the same information in its written form was not restrained by equity; that the issue of how disclosure accorded with equity was the same whether disclosure was by way of oral communication only or by way of a copy of a document or, indeed, in both manners.

The Queensland Commissioner found that those small portions of the references, whose content had not been disclosed orally to Mr Kupr, were not required to be disclosed in equity and that, in fact, there was an equitable obligation on the Department to withhold these small portions. Overall, the Queensland Commissioner's decision in Kupr was that, in the case of the majority of the records at issue, their disclosure under FOI would not "found an action for breach of confidence".

Public Interest and Equity

I note that in its submissions the Organisation stresses the approach which views the equitable duty of confidence as grounded in a "moral obligation" and on what "any reasonable man" would understand as constituting a duty of confidence. While not expressed in these terms, this might reasonably be represented as an argument that it is in the public interest to ensure that a "moral obligation" is met or that the "reasonable man" understands what best serves the public interest.

Furthermore, considering the UK and Queensland decisions as outlined above, it seems to me that there is a considerable degree of overlap between the language of equity (as in the latter case) and the language of fair procedure (as in the former case). What is required by equity in the Queensland case is the application of fair procedure; and ensuring fair procedure, in turn, must surely rate as a very significant public interest.

A recent Labour Court adjudication (Recommendation No. 18925, 25 June 2007) commented on what is required by fair procedure in circumstances rather similar to those applying in this present case. The case concerned a worker who applied for a job with the Personal Injuries Assessment Board (PIAB); she was successful at interview and was sent a contract in draft form; she understood that the formal job offer was dependent on a medical check and on references from two referees of her own choosing. The worker gave one month's notice in her existing employment on the assumption that she would be taking up a job with the Personal Injuries Assessment Board. She satisfied the medical examination. However, one of her referees "failed to give what was in PIAB's view a satisfactory verbal reference to a member of its HR staff"; the PIAB contacted the referee "to clarify the situation and to see if there were any mitigating circumstances which might change the tenor of the initial conversation, however as a result a letter was later issued advising the Worker that her application would not now progress." The worker was able to withdraw her notice from her current employer and remain in that job. I understand from information provided to my Office by the Labour Court that the worker in this case was not made aware of the content of the reference, relied upon by the PIAB, in advance of the decision to cease consideration of her application.

It is relevant to note that the Labour Court's findings in this case are based on standards of fairness, equity and natural justice.  The binding Recommendation of the Labour Court was as follows:

"While the Court does not contest that any offer of a position is dependent on matters such as satisfactory references, it is the view of the Court that there is an onus on a prospective employer to be fair and thorough in its assessment of the views of referees and to adopt standards which are fair and reasonable.

In this case, the Court feels that the PIAB fell far short of such standards in its dealings with a prospective employee whom it had not only suggested should apply for a position but, on its own admission, found suitable for the position.

The Court considers that the PIAB failed to apply fair and equitable standards of natural justice in dealing with the interpretation of the referee's responses to questions raised and recommends that the PIAB pay compensation to the claimant in the amount of E15,000.

Ms. Y's Case

I am satisfied that in Ms. Y's case, but for the adverse reference provided by the Organisation, the HSE would have offered her employment. In fact, the HSE agrees that is the case. I accept that fair procedure need not necessarily apply at every stage of a job selection process operated by a public body. However, I am satisfied that Ms. Y's job application had reached the stage at which it was necessary to accord her procedural fairness before it could decide (as the HSE has put it) "not to continue processing Ms. Y for employment ...". I also accept that the requirements of fair procedure will vary from case to case. In the present case, it seems to me that these requirements include informing Ms. Y of the substance of the negative reference and allowing her an opportunity to respond. However, I recognise that in this case there is a conflict between the HSE's apparent obligation to maintain the confidentiality of its communications with the Organisation and its duty to afford fair procedure to Ms. Y

I take the view that in Ms. Y's case the public interest in ensuring fair procedure merges with a consideration of whether equity acts to restrain the HSE from disclosing the content of the Organisation's reference. As in the Kupr case, I take the view that the key test of whether disclosure will constitute a breach of a duty of confidence is the test of whether such disclosure is unauthorised.

As I understand matters, the fact that the Organisation has withheld its consent to the HSE's disclosure of the reference contents does not decide the issue. Disclosure may be regarded as authorised where it is not unconscionable and where it respects equitable principles. Equity has to do with fairness and natural justice. The Organisation itself, in its submissions, has stressed that equity is grounded in a "moral obligation" and in what is reasonable in the circumstances. It seems to me that there is an equitable obligation on the HSE to ensure its dealings with Ms. Y comply with fair procedure (which, as noted earlier, also has a constitutional dimension). While I accept that the HSE is bound by an equitable duty of confidence vis à vis the Organisation, the extent of that duty is conditioned by the rules of equity. Thus, the HSE is bound by the duty of confidence not to disclose the Organisation's information to a third party (other than Ms. Y). On the other hand, I take the view that the equitable duty of confidence in this instance cannot be understood as requiring the HSE to adopt a position which is itself at odds with the requirements of equity.

For its part, the Organisation appears to accept that disclosure of its information is authorised where such disclosure is to a person "to whom it might legitimately be divulged"; its argument appears to be that it is not legitimate to divulge its information to Ms. Y. I cannot accept that this is correct. The purpose for which the HSE acquired the information from the Organisation was to assist in its employment selection process. A requirement of that process (at least at the stage when the reference was sought) was that there be fair procedure; in the circumstances of this case, this meant Ms. Y was entitled to be made aware of any negative or adverse comment regarding her. Therefore, it is my view that it would have been entirely legitimate for the HSE to divulge to Ms. Y the substance of whatever comments were made about her by the Organisation.

The HSE has already gone some of the way in meeting its fair procedure obligations in so far as it has let Ms. Y know (a) that it sought a personal reference from the Organisation in respect of her, and (b) that the Organisation provided a reference which was negative or adverse. Given the passage of time and the fact that the HSE has taken a decision not to employ Ms. Y, it may be argued that it is now too late to be concerned about fair procedure and equitable principles, that disclosure at this stage will not undo any harm which may have occurred. Again, I do not agree that this is the case. Equity is a complex subject and how the principles of equity should apply in a particular case is not always self-evident. Nevertheless, it is relevant to recall that in this case the initial invocation of equity was on the part of the HSE and of the Organisation; in this context, it is also relevant to advert to the equitable principles that "he who seeks equity must do equity" and that "he who comes to equity must come with clean hands". I am satisfied that it is still in the interests of equity and fairness that Ms. Y should be made aware of the substance of the information provided by the Organisation.

Findings

Having considered the matter very carefully, and in the light of the analysis set out above, and on the basis of the very particular facts and circumstances attaching to this case: I find that the disclosure to Ms. Y by the HSE of the substance of the information provided by the Organisation is not "unauthorised". Applying the tests set out in the Coco judgment in order to establish a breach of an equitable duty of confidence, I find that the test of "unauthorised use" is not met in circumstances where the HSE discloses to Ms. Y the substance of the information provided by the Organisation. Therefore, I find that the release to Ms. Y under the FOI Act of the substance of the information provided by the Organisation does not constitute a breach of an equitable duty of confidence. Accordingly, I find that section 26(1)(b) of the FOI Act does not apply to such disclosure.

Having examined the records at issue, which are described in the Scope section of this decision, I find that the disclosure of the substance of the information provided by the Organisation will involve the release to Ms. Y of most of the contents of the records. Some small deletions from the records will be necessary in order to confine the release strictly to what discloses the substance of the information provided by the Organisation.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby annul the decision of the HSE and direct that it release the records in question subject to certain deletions (of which I will inform the HSE separately).

Right of Appeal

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 eight weeks from the date of this decision.

Emily O'Reilly

Information Commissioner

31 October 2007