How does section 41 apply in the context of requests for private information?

In recent years, the common law of confidence has evolved to cover the wrongful disclosure of private information as a violation of the HRA article 8 right to respect for private life.

If you receive a request for information about people’s personal and private matters, you should consider relying on section 40. This is likely the most appropriate exemption for this type of information. 

If you need advice on how to apply the section 40 exemption, read our detailed guidance on Section 40 and Regulation 13 – personal information. 

When considering if section 41 applies to information about people’s personal and private matters, you need to be satisfied people can be identified, either directly or indirectly, if you were to release the requested information.

If people cannot be identified, section 41 is unlikely to be engaged. This is because disclosure is unlikely to result in a breach of confidence.

For more information to help you decide if people can be identified, read our guidance on Part one: Is the request for personal data?. 

The same applies if the information has been effectively anonymised.

What’s the process to follow when applying section 41 to requests for private information? 

The process to decide if disclosing private information in response to an FOI request would result in an actionable breach of confidence is slightly different to the one for non-private information. 

First, you must show you obtained the information from another person. This can also be another public authority. 

We have explained this limb of the section 41 exemption in the section “Have you obtained the information from any other person?”.

Then, you need to consider if disclosing the information would result in an actionable breach of confidence. 

For non-private information, you would normally follow the three-part Coco test to decide if a disclosure would result in a breach of confidence. 

Instead, when the request captures information about people’s personal and private matters, you need to consider if disclosing the information would violate people’s article 8(1) right to have their private and family life respected.
If it does, it could be a breach of confidence. 

Would disclosure result in a breach of confidence? 

To decide if disclosure of private information interferes with people’s article 8(1) right to have their private and family life respected, you need to consider: 

• if the information can be classed as “private”; and
• if disclosing it would be an excessive interference with the person’s right to respect for their private life. 

Generally, information is private if the person to whom it relates would have a reasonable expectation of privacy about it. This will often depend on the circumstances of the case. 

Relevant factors to consider include: 

• the nature of the information – eg information about someone’s health, family life, finances and personal relationships is normally considered private; 
• the extent to which the information is already in the public domain.
• Information that has entered the public domain is unlikely to have retained its private nature;
• if it was communicated in circumstances importing an obligation of confidence; and
• if the information is about a public figure who holds a position of influence or a decision-making role. 

If the requested information is about a public figure, the reasonable expectation of privacy threshold is lower. This is particularly the case where the information reveals something about their role as a public figure and the standards of behaviour expected of them.

FOIA no longer applies to communications with members of the Royal Family. However, what this example shows is that public figures would have a reasonable expectation of privacy about purely personal and private matters. But when the private information reveals something about the way in which they act as a holder of a public office or decision-maker, it’s unlikely their expectation of privacy could be considered reasonable. 

If information is of a private nature, you should generally treat it as more than trivial. You also don’t have to show detriment. Showing that the disclosure of the private information would result in a loss of privacy is generally enough. 
Once you’re satisfied the information is private information, you need to consider if its disclosure would significantly interfere with the person’s expectation of privacy. 

As already explained, when disclosing information in response to an FOI request, you are effectively placing it in the public domain. This could be a substantial intrusion into people’s private lives. 

Again, if the person is a public figure, the threshold would generally be lower. Whether their expectations of privacy is reasonable would also depend on factors such as their seniority in the role and whether they have responsibility to make decisions affecting public policy or the public purse. 

For example, ministers must declare any private interests which could give rise to a conflict with their public duties. These declarations also include the private interests of their spouse or other close family members. The lists of interests of ministers and their family members are normally published even though they include information that would be considered private for an ordinary citizen, such as financial interests and affiliations to charities.  

If you’re satisfied that: 

• the information is private; and 
• its disclosure would result in an excessive intrusion into the person’s private life

then, article 8(1) of the HRA 1998 is likely to be engaged. This triggers the protection of the law of confidence for misuse of private information.

This means that disclosing the information in response to the FOI request would result in a claim for breach of confidence. As explained in the section “Would the claim be “actionable”?”, the claim should be more than arguable. That is, you need to be satisfied the person bringing it would be likely to win if they took it to court.

Would you have a public interest defence to the claim?

Once you’re satisfied that disclosure of the private information would result in a claim for breach of confidence, you need to consider if you would have a public interest defence to the claim. If you do, that means the claim is not “actionable” and you would be able to disclose the information. 

In the context of breach of confidence for misuse of private information, this involves striking a balance between two competing fundamental rights in the HRA 1998: article 8(1) [right to respect for private and family life] and article 10(1) [freedom of expression]. If the balance comes down in favour of art. 10(1), you would be able to justify disclosing the private information on public interest grounds. 

Both the right to respect for private and family life and the right to freedom of expression are fundamental human rights. Therefore, you should not approach the exercise as considering one as more important than the other. You should assess the request on its own merits and based on the circumstances of the case. 

To decide where the balance lies you have to apply the test of proportionality we explained before. This means considering: 

• the comparative significance of the rights relative to the information;
• the extent to which restricting one to advance the other is necessary; and
• whether the restriction is proportionate to the legitimate aim pursued. 

In Campbell v MGN Ltd ([2004] UKHL 22, 6 May 2004)), the House of Lords explained: 

“neither [right] can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need [para. 55, Lord Hoffman]

(…)

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. (…) The tests (…) are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. (…) Any restriction of the right to freedom of expression must be subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither article 8 nor article 10 has any pre-eminence over the other in the conduct of this exercise.” [para. 113, Lord Hope of Craighead]

The arguments justifying disclosure to guarantee the article 10(1) right to freedom of expression are largely the same as those outlined in the section on “Public interest defence arguments”. 

You then need to balance those arguments against the public interest in maintaining people’s right for respect to private and family life.

Article 8(1) seeks to protect people’s right to: 

• control the transmission of information about themselves in order to safeguard their personal autonomy;
• safeguard their human dignity, and have the respect and esteem of other people;
• form and maintain personal relationships; and
• have private communications with other people. 

As already explained, when balancing competing arguments to decide if you have a public interest defence to a claim for breach of confidence, the weight to attach to each relevant argument will depend on the value of the information and the circumstances of the case. 

For example, if you have received the information in the context of a relationship of confidence, such as a doctor receiving information from a patient, that would add more weight to the public interest in maintaining people’s right to respect for private and family life. 

You should also consider the possible harm which could come to the individuals if intimate details about their private lives, home or correspondence were disclosed. For example, in the context of information about a person’s health, breaching the confidence could put people off seeking medical advice or other forms of treatment and support, putting them at a higher risk of harm. 

On the other side of the scale, the factors in favour of the article 10(1) right on freedom of expression would carry more weight if the private information adds significantly to debates on issues of public importance and concern. 

This is more likely to be the case when disclosure of the private information, especially if it’s about a public figure, would: 

• reveal evidence of serious misconduct;
• reveal apparent conflict of interests; or 
• be necessary to correct a false impression.

It’s also more likely if the disclosure would help to prevent a greater harm, for example to public safety. 

Again, you need to be satisfied that releasing the information to the world at large is a proportionate way to achieve a legitimate aim. If there is an alternative valid route, disclosing private information under FOIA is unlikely to be proportionate. 

Section 41 is an absolute exemption. However, it comes with its own balancing exercise. This is different from the balancing exercise required by section 2 when a qualified exemption is engaged. 

The section 41 balancing exercise assumes the information should be withheld unless the public interest in breaching confidence is greater. 

If your balancing exercise comes down in favour of the article 8(1) right to respect for a private life, the public interest defence would not be successful. The disclosure would equate to an actionable breach of confidence. That means section 41 is engaged and you must not disclose the information under FOIA. 

If your balancing exercise comes down in favour of the article 10(1) right to freedom of expression, the public interest defence would be successful. The disclosure would be justifiable in the public interest. That means the claim for breach of confidence is not “actionable” because you would be able to defeat it on public interest grounds.

Section 41 is not engaged, and you must disclose the information.