Confidential Documents and the FOI Act - are you sure I need to disclose them?

LG Leader July 2017

The answer to this question is contingent upon the matters contained within a document – not the type of document. This is relevant because we are often asked the question whether documents that are subject to a confidentiality order under section 91 of the Local Government Act 1999 (LG Act) is required to be disclosed if a person makes an application under the Freedom of Information Act 1991 for the same information.

You may (or may not) be surprised to know that regardless of whether documents are subject to confidentiality under section 91, the application of the FOI Act and any exemptions that may apply to prevent disclosure is an entirely separate consideration. This is because there are limited grounds that a determining officer can rely upon to exempt documents just because they are confidential under section 91 of the LG Act. Again, the determining officer must have regard to the content of the documents to see if there is an exemption under Schedule 1 to the FOI Act.

Clause 13 to Schedule 1 relates to documents that contain confidential material but this is limited to documents whereby:

• the disclosure would found an action for a breach of confidence; or
• it contains matter obtained in confidence that:
  • might reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and
  • would, on balance, be contrary to the public interest; or
• it contains matter:
  • the disclosure of which would, under a term of the contract, constitute a breach of the contract or found an action for breach of confidence; and
  • the term of the contract has been approved by the Council.

Whilst there may be other relevant exemptions that apply to documents subject to a confidentiality order, reliance on the confidentiality exemption under Schedule 1 is limited and may not necessarily provide the protection that is needed to prevent information that is confidential in accordance with the LG Act, exempt from disclosure if an FOI application were made seeking access to it. This means that while documents may be confidential under section 91, the same documents could nevertheless be disclosed if an application under the FOI Act were made and an exemption did not apply.