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What if you are a government department?

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You cannot claim section 41 if you are: 

  • a government department which received the information from another government department; or
  • a Northern Ireland government department which received the information from another Northern Ireland government department. 

Generally, government departments are considered as separate legal persons. This is set out in section 81(1) of FOIA. 

However, section 81(2) says that government departments cannot rely on section 41(1)(b) for confidential information they receive from each other.  

Section 41 could still apply in situations where the department had received the information from another department, which, in turn, had obtained it from another person. This is because both departments would owe a duty of confidence to the person who originally confided the information. 

Section 41 can apply where the information was shared between a Northern Ireland government department and a government department, or vice versa.