Section 41 - Information provided in confidence

25 April 2025

• We have added a new section to give you some background information about the duty of confidence and how that is relevant for the application of section 41 of FOIA. You can find this change in the section “What is the duty of confidence?”.  
• We have clarified the meaning of “otherwise than”/ “apart from” this Act to explain that section 41 imports its legal test from the common law duty of confidence. You can find this change in the section “What does FOIA say?”.
• We have provided more guidance about how to apply the “neither confirm nor deny provision” of section 41. You can find this change in the section “Can you confirm or deny holding the information?”.
• We have provided more guidance on when we consider information to have been “obtained by another person” under section 41(1)(a). You can find this change in the section “Have you obtained the information from any other person?”.
• We have clarified our position on the “test of proportionality” for the purpose of deciding whether you would have a public interest defence to a claim for breach of confidence. You can find this change in the section “Could someone bring a claim against you for breaching confidence?”. 
• We have provided more guidance on how to apply section 41 when dealing with requests for private information if section 40 does not apply. You can find this change in the section “How does section 41 apply in the context of requests for private information?”.
• We have merged into this guidance content previously catered for in the separate guidance on “Information about the deceased”. You can find this change in the section “How does section 41 apply to requests for information about deceased people?”.
• We have included new sections to help you think through some additional considerations to bear in mind when relying on section 41. You can find this change under “What else do you need to consider?”
• We have included more examples from our decision notices and Tribunal cases to help you apply this exemption in practice.