40. The Appellant in the GoA (page A73) also makes submissions about “The
dangerous public-policy implications were the University’s claims to be accepted.
He says:“...The University’s claims, if accepted, would set a precedent that any public
authority could suppress the disclosure of the Facts and Evidence section of any
investigative report, whenever those facts might be embarrassing to the public
authority, simply by purporting to defend the confidentiality rights of witnesses.
This would be a dreadful public policy, and wholly contrary to the principles of
FOIA.”
41. We do not accept this submission. The statutory basis of FOIA in providing an
entitlement to information is set out in section 1(1) FOIA. This is subject to the
statutory exemptions also set out in FOIA including by section 41. While not
itself directly subject to the PIBT the test is subject to a consideration of the
public interest. These provisions (and relevant legal authorities) are the basis
upon which our decisions are to be made by section 58 FOIA.
42. In carrying out a consideration of the PIBT to determine if a public authority
would have a public interest defence to a claim brought for breach of
confidentiality the IC suggests the Tribunal should (A133):“.. carry out an exercise similar to the public interest test under FOIA, except that (i)
the balancing exercise starts from the presumption that confidentiality should be
maintained; and (ii) purely private interests in maintaining confidentiality can
weigh against disclosure (Derry City Council v Information Commissioner, IT, 8
January 2006).”
43. We are not bound by the Guidance but we found its overview useful. It refers
to the Judgment of the Court of Appeal in Associated Newspapers Limited 00
HRH Prince of Wales [2006] EWCA Civ 1776 at para 67
“There is an important public interest in the observance of duties of confidence.
Those who engage employees, or who enter into other relationships that carry with
them a duty of confidence, ought to be able to be confident that they can disclose,
without risk of wider publication, information that it is legitimate for them to wish
to keep confidential. Before the Human Rights Act came into force the
circumstances in which the public interest in publication overrode a duty of
confidence were very limited. The issue was whether exceptional circumstances
justified disregarding the confidentiality that would otherwise prevail. Today the
test is different. It is whether a fetter of the right of freedom of expression is, in the
particular circumstances, 'necessary in a democratic society'. It is a test of
proportionality. But a significant element to be weighed in the balance is the
importance in a democratic society of upholding duties of confidence that are
13