The answer to the question is: “I can’t tell you who asked the question”

I'd like to make an FoI request but I'd rather nobody knew who I was. Is that ok?

When a company or organisation makes a Freedom of Information request to a public authority can it expect its identity to remain secret? Amazingly it would appear the answer is: “Yes”.

A decision by the Information Commissioner [FS50187314] has decided that for a public authority to disclose the identity of an organisation making a request would be an actionable breach of confidence and so is exempt under the Act by virtue of S.41 (information provided in confidence).

The names of individual requestors have always tended to remain secret as the release of their identities was considered to be a breach of the Data Protection Act. Now however, it seems that companies, charities, pressure groups, residents’ associations and even political parties may be able to keep their requests secret.

Explaining the rationale behind the decision the Assistant Commissioner Anne Jones said the public authority owed the special interest group an obligation of confidence, the release of the group’s name had the quality of confidence and it would suffer detriment as a result of its release into the public arena. She also said that the public interest test, which is part of the Breach of Confidence laws as opposed to the Freedom of Information laws, was not powerful enough to allow the group’s name to become public.

The details of the case are that an individual made a request to the Department for Business, Enterprise and Regulatory Reform (BERR) asking for all the FoI questions it had in the pipeline at that time as well as who had put in the request.

The specific request in this case was summarised as “Star Energy’s presentation to DTI re: use of the Gas Act 1965 and meeting notes.”

BERR refused to tell the person making the FoI request which organisation had made the earlier request about the Star Energy presentation. It relied on S.41 saying the release of the organisation’s name would have been a breach of confidence.

For a breach of confidence to exist the information should have both the quality and obligation of confidence as well as its release being detrimental to the person or organisation.

When the Assistant Commissioner examines these elements it is easier to understand how she came to the judgement even if you think she got it wrong.

In relation to the obligation of confidence she states that the special interest group said at the time it made the request it was making the request in confidence. The Commissioner states that this request by the special interest group is sufficient to put a duty on the public authority that provides the necessary obligation of confidence.

As far as the quality of the confidence is concerned the Commissioner states: “the fact that a group or organisation has submitted a particular freedom of information request to a public authority does not seem sufficiently important that it would attract the necessary quality of confidence.”

However she then goes on to say the mystery organisation goes claim “its activities would be undermined were its identity disclosed.” She goes on to add: “The fact that the organisation considers the information not to be trivial is sufficient to give it the necessary quality of confidence.”

Finally when addressing the issue of detriment the Commissioner was involved in direct communication with the mystery organisation itself rather than the public authority. She was satisfied the organisation’s activities would be undermined if its name were disclosed  but said for obvious reasons she could not go into the details of the argument.

She also dismissed the public interest argument relating to breach of confidence.

Her decision on the case was that the BERR was right in its initial refusal of the request and that the name of the mystery organisation should remain secret.

Editor’s note: This is one of the worst judgements I have seen from the Information Commissioner. The more you look into it the more holes it has. As a journalist it would appear that I could keep my company name secret as long as I said I wanted it to remain secret and put up some argument about how I might suffer if it were released. The Commissioner accepts on face value the quality and obligation arguments from the mystery organisation without any real assessment of the evidence. The detriment discussion is a double-edged sword. If the organisation wants to remain secret because the revelation of its identity would cause it damage then it would appear that its involvement in the request is at odds, or at the very least at variance, from its stated aims. This means it must be in the public interest to reveal the name of the group as it would appear to be misleading people about its public image if making this request would be so detrimental to it. Of course the fundamental issue in this case is where does it stand in relation to the general philosophy of openness and transparency that is supposed to come with FoI. I’ll be putting in a request to the Information Commissioner for the name of the person/organisation that took the case to appeal in the hope that I can convince them to take it to the Tribunal (link) . If people have any suggestions as to the name of the mystery organisation please e-mail me and I’ll post them up - anonymously of course!