Legal

Regulators and confidential information

Governance | Sarah Clune | 5 Jul 2011

A newspaper has gained access to and published a charity's confidential information, is this legal and can it be prevented?

Dear editor

A newspaper has used the Freedom of Information Act to gain access to, and publish articles based upon what we thought was confidential correspondence between our charity and a UK charity regulator. This took us completely by surprise as we assumed that all correspondence with a charity regulator regarding a sensitive issue would be confidential.

Is there anything charities can do to prevent disclosure under the Freedom of Information Act? Or should we just be extremely careful as to what we write to the regulator about? Will this stop charities confiding in the regulator and seeking their advice and help?

Yours sincerely,

A vexed chief executive

Dear vexed chief executive

It is difficult to comment on the specific situation relating to your charity without knowing what information has been published and the nature of the ‘sensitive issue’.

The Freedom of Information Act 2000 gives a general right of access to all types of recorded information held by public authorities. The Charity Commission sees itself as a government department and is therefore (arguably) bound by the Act. The Act applies to public authorities in England, Wales and Northern Ireland. The Act does not apply in Scotland, however, the Freedom of Information (Scotland) Act 2002 has broadly comparable provisions relating to public bodies, including the Scottish regulator, OSCR.

There is always the threat of a Freedom of Information request being made by a third party to the regulator but the Act does contain exemptions, which fall into two categories: ‘absolute’ and ‘qualified’. If an absolute exemption applies, the Commission must not disclose the information. If a qualified exemption applies, the Commission must decide whether the information should be released in the public interest.

The commonest exemptions that are applicable to charities are (absolute exemptions): material supplied in confidence, information where release would infringe the Data Protection Act 1998; and (qualified exemptions): information held by the regulator for the purpose of investigations, covered by legal privilege, or that would prejudice commercial interests.

There are steps that charities can take to ensure that correspondence with the regulator remains confidential to the fullest extent possible under the law. Trustees and their staff should ensure that they are familiar with the basic concepts of the Act and try to ensure where possible that commercially sensitive or confidential information is not sent to the regulator unless required to do so, eg when making a serious incident report. Practical steps include marking each page of submissions ‘CONFIDENTIAL’ or ‘COMMERCIALLY SENSITIVE’, as appropriate, and explaining in a covering letter why that is the case.

A charity making a serious incident report might be concerned that the information provided to the regulator may be released. However, release would only be justified if it is in the public interest. Given that the likely effect of releasing the information would be to discourage other trustees from providing information and thereby rendering the whole serious incident regime useless, it seems that the public interest falls firmly in the protection of information and therefore release should be unlikely.

Your sincerely,

Sarah Clune

Practice support lawyer, charity team 

Stone King LLP 

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