Disclosure of confidential information

Geoff Wild looks at the receipt of confidential information by members and the issues around its potential disclosure.

Councils are usually committed to the principles of openness and transparency in decision making. However, in the practical application of these principles, a council and its members need to have regard to legal obligations which, in some cases, may require information to be kept confidential.

One potentially problematic issue is the rights and obligations of members regarding confidential information and the circumstances in which such information may be disclosed.

Local councillors must comply with their statutory declaration of office (and consequently the Code of Conduct) in order to be able to receive confidential information. As a general rule, therefore, members must not disclose information given to them in confidence nor disclose information acquired that they believe is of a confidential nature. But there are some exceptions, which are dealt with below.

What is confidential information

There is no legal definition of ‘confidential information’ that is of general application. Nor does the Local Government Association Model Code of Conduct define what is confidential. However, it is not necessary for the person who supplied the information to expressly state that information is confidential. In many cases, the fact that the information is confidential may be inferred from the subject matter and surrounding circumstances. If a councillor believes the material is confidential or ought reasonably to be aware of the confidential nature of the information, then the duty under the Code applies.

The confidentiality or otherwise of information therefore needs to be considered in the context of individual circumstances. However, by way of general guidance, the following categories of information would normally be treated as confidential:

• Reports that are in Part 2 (the exempt section) of Council or committee agendas
• Details of commercial negotiations
• Where there is a legal restriction on the disclosure of information, e.g. under the Data Protection Act, contractual obligations, a court order or pending legal proceedings covered by the sub judice rule
• Terms and conditions of employment of officers or pending grievance or disciplinary proceedings
• Personal information concerning individual service recipients, e.g. child protection cases, benefits investigations, etc
• Information which, given its nature, timing and context is such that a reasonable person would consider it to be confidential, e.g. when information is supplied to a Member and is clearly stated to be confidential. The disclosure of such information would normally tend to have a detrimental effect on the interests of the Council, service users or third parties involved.

Some information which would otherwise be confidential may nevertheless be subject to public rights of access under the law. This includes subject access under the Data Protection Act 2018, a request for access under the Freedom of Information Act or Environmental Information Regulations, access to accounts and records under the Audit Commission Act 1998, as well as access to meetings and documents under the Local Government Act 1972. Information accessed using these means can be regarded as public and a member may share the information with others.

Members’ rights to access information are dealt with in a separate Monitoring Officer Bulletin.

Members’ duty of confidentiality

The LGA Model Code of Conduct provides as follows:

4.           Confidentiality and access to information

As a councillor:

4.1 I do not disclose information:

a. given to me in confidence by anyone

b. acquired by me which I believe, or ought reasonably to be aware, is of a confidential nature, unless

i. I have received the consent of a person authorised to give it;

ii. I am required by law to do so;

iii. the disclosure is made to a third party for the purpose of obtaining professional legal advice provided that the third party agrees not to disclose the information to any other person; or

iv. the disclosure is:

1. reasonable and in the public interest; and

2. made in good faith and in compliance with the reasonable requirements of the local authority; and

3. I have consulted the Monitoring Officer prior to its release.

4.2 I do not improperly use knowledge gained solely as a result of my role as a councillor for the advancement of myself, my friends, my family members, my employer or my business interests.

4.3 I do not prevent anyone from getting information that they are entitled to by law.

Local authorities must work openly and transparently, and their proceedings and printed materials are open to the public, except in certain legally defined circumstances. You should work on this basis, but there will be times when it is required by law that discussions, documents and other information relating to or held by the local authority must be treated in a confidential manner. Examples include personal data relating to individuals or information relating to ongoing negotiations.

The duty of confidentiality under the Code applies only when a Member is acting in an official capacity. The information must therefore be received and/or disclosed by the Member as a councillor and not in a private capacity.

The fact that information given in confidence has been improperly made public does not mean that it loses its confidential nature and can thereafter be recited in public with impunity. It is a breach of the Code to disclose information of a confidential nature, however it is acquired.

Disclosure with consent

The Code of Conduct refers to “the consent of the person authorised to give it” as a potential justification for the disclosure of confidential information. This would normally be the author of the document.

Disclosure required by law

Disclosure of information might be required in connection with legal proceedings, or the information could be required under one of the exemptions contained within the Data Protection Act 2018. Also, under the Data Protection Act 2018 subject access regime, individuals are entitled to be provided with copies of all information about themselves held by an organisation. In such cases the legal obligation to disclose overrides the duty of confidentiality.

Disclosure for the purpose of obtaining advice

You can disclose confidential information if the disclosure is to enable you to obtain professional advice, such as from a solicitor. However, your need to make sure that they agree not to disclose the information to third parties.

Disclosure in the public interest

Paragraph 4.1(iv) of the Code of Conduct permits members to disclose information “in the public interest.” However, the provision is more restricted than first appears. Disclosure is subject to four conditions:

• it must be reasonable
• it must be in the public interest
• it must be made in good faith and
• it must be made in compliance with any reasonable requirements of the council

Reasonableness

This requires consideration of matters such as:

• Whether you believe that the information disclosed, and any allegation contained in it, is substantially true. If you don’t, the disclosure is unlikely to be reasonable.
• Whether you make the disclosure for personal gain. If you are paid to disclose the information, the disclosure is unlikely to be reasonable.
• The identity of the person to whom the disclosure is made. It may be reasonable to disclose information to the police or to an appropriate regulator. It is less likely to be reasonable for you to disclose the information to the world at large through the media.
• The extent of the information disclosed. The inclusion of unnecessary detail, and in particular, private matters such as addresses or telephone numbers, is likely to render the disclosure unreasonable.
• The seriousness of the matter. The more serious the matter disclosed, the more likely it is that the disclosure will be reasonable.
• The timing of the disclosure. If the matter to which the disclosure relates has already occurred and is unlikely to occur again, the disclosure may be less likely to be reasonable than if the matter is continuing or is likely to re-occur.
• The legitimate expectations of third parties about the information being kept confidential are an important relevant factor when considering whether the disclosure is reasonable.

Public interest

The public interest test is dealt with in a separate Monitoring Bfficer Bulletin.

Disclosure must be in the public interest, which involves one or more of the following matters or something of comparable seriousness, that has either happened in the past, is currently happening, or is likely to happen in the future:

1. A criminal offence is committed
2. The authority or some other person fails to comply with any legal obligation to which they are subject
3. A miscarriage of justice occurs
4. The health or safety of any individual is in danger
5. The environment is likely to be damaged
6. That information tending to show any matter falling within (a) to (e) is deliberately concealed

In deciding whether disclosure is reasonable and in the public interest, account has to be taken of the Human Rights Act, particularly Article 10 (right to freedom of expression) and Article 8 (right to respect for private and family life, home and correspondence).

In the famous ‘homes for votes’ enquiry in 2003, involving the former Leader of Westminster City Council, Dame Shirley Porter, the Adjudication Panel of the Standards Board for England ruled that in order to be compatible with Article 10, the Code of Conduct should be read so as to allow the disclosure of confidential information in circumstances where it is appropriate in the public interest to do so.

In other words, it is necessary to consider the circumstances surrounding the disclosure of confidential information when determining whether there is a breach of the Code of Conduct – particularly whether the member acted in the public interest.

But it is important to recognise that there may be many competing public interests. Article 10(2) acknowledges that, in certain circumstances, there may be an overriding public interest in maintaining confidence and preventing the disclosure of confidential information. In each case, there must be a balancing exercise, with the public interest in maintaining confidence weighed against a countervailing public interest favouring disclosure.

Good faith

Disclosure is not made in good faith if you act with an ulterior motive, for example, to achieve a party political advantage or to settle a score with a political opponent.

Council’s reasonable requirements

This means that before making the disclosure you must comply with the authority’s policies or protocols on matters such as whistle-blowing and confidential information and you must raise your concerns through the appropriate channels set out in such policies or protocols.

Conclusion

A public-interest defence can raise complex issues of fact and law. There is no one definition of the public interest which can be applied to all cases. Each case may bring with it many unique aggravating and mitigating factors. It is important for members to be able to distinguish information which is genuinely in the public interest from that which may simply be politically advantageous, balancing the public’s right to receive information with an authority’s need to maintain confidentiality in certain areas, if it is to function in the public’s best interest.

Given the restrictions and qualifications set out above, members should proceed with extreme caution before disclosing confidential information. If in doubt, advice should always be obtained from the Monitoring Officer.

Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.