Manual In Confidence: When to Protect Secrecy and When to Require Disclosure

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The information must not be trivial in nature, and not so innocuous, or of so little consequence, as to qualify as 'trivial tittle tattle'. The requirement of significance appears to be satisfied if the information has commercial value. The investment of time and money is not a decisive indicator in itself of the fact that information has a commercial value. Information can be costly to produce without necessarily being worth anything. The basis of the obligation to respect confidences 'lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained'.

Generally, for information to be treated as confidential information by the courts, it must at the time have been communicated by the confider and received by the recipient on the basis of a mutual understanding that the information was not to be disclosed except where authorised. Where there is no express statement of confidentiality, one test for deciding whether an obligation of confidence exists is whether information has been supplied by the confider for a limited purpose and in circumstances where there is a reasonable expectation that confidentiality will be preserved. However, it has been held that the 'test of confider's purpose will not ordinarily be appropriate where each party's interest in quite different, and known to be so'.

This issue must be judged according to the understanding of the parties at the time of the communication of the information. Where information is required to be produced by statutory demand, and is not given voluntarily, the recipient of the information may not be under an obligation of confidence in respect of that information. There are four broad categories of information that the courts have been prepared to protect as confidential information so long as the additional element, communication of the information to the recipient in the appropriate circumstances, is also present.

Some, but certainly not all, of the information that an agency will be provided with in the course of their activities will be business or commercial information. There appears to be a widely held belief in agencies that all business or commercial information is confidential information.

Disclosing confidential information

This is not correct. For business or commercial information to be confidential information, it must meet the criteria for the existence of confidential information discussed above. Such information, of itself, is not regarded by the courts as 'inherently confidential' information. Trade secrets cover a range of information, some of which relates to the production of goods and services and includes, for example, inventions eg a tool , manufacturing processes, chemical formulae, engineering and design drawings, craft secrets and recipes eg Worcestershire sauce, Coca-Cola.

Another important class of 'inherently confidential' business or commercial information is information which a business entity generates about its own activities. This kind of information can include profit margins, costs of production and pricing data; sales statistics; customer and supplier lists; sources of supply; market projections; details of promotional strategies and expansion plans; information about customer requirements; details of a business entity's current negotiations; and negotiated prices paid by customers.

In relation to pricing information in the Commonwealth environment, whilst the total price paid under a government contract is not 'inherently confidential' because of gazettal requirements , 37 the details of the rates or pricing structures might be 'inherently confidential'.

There may be legitimate grounds for an agency to accept an obligation of confidentiality in relation to the rates being charged by the supplier. It will be a question of the facts and circumstances in each case whether the particular information is 'inherently confidential'.


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Personal information can come within the ambit of confidential information if it meets the requirements listed above. Types of personal information which could be regarded as 'inherently confidential' are information relating to sexual conduct, personal finances, religion, political beliefs, and tax affairs.

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As in the case of business or commercial information, the confidentiality that may be attached to personal information ceases when that information enters the public domain. The tests described above are also applicable to ascertaining whether any information about government which has been generated by government ie Government Information is inherently confidential, and whether an obligation of confidence has arisen where that information is held by a third party. However, whether it will be possible for the government to show that a third party is under an obligation of confidence in respect of particular Government Information depends on different considerations to those which apply to the case of an individual or business.

For an obligation to exist, it must be shown not only that the information is 'inherently confidential', but also that it is in the public interest that such information remain 'inaccessible' or 'secret'. Therefore it is important for an agency to give consideration to public interest issues when they are considering whether to seek to impose an obligation to protect Government Information under a contractual provision, or otherwise.

Obligations of confidence may come to an end in a number of ways, including:. The confider of the 'inherently confidential' information is usually in the best position to propose a period during which the obligation of confidence is to be in force. This should be a realistic period taking all the relevant circumstances into account.

Even if a long period is agreed, the obligation will not subsist if, say, the information comes into the public domain, or the information loses its 'inherently confidential' character over time. Detriment to the confider of information or other persons is not required to create an obligation of confidence in relation to particular information. Detriment is only relevant, if at all, when there is a breach of an obligation of confidence. However, in considering whether the Commonwealth should agree that information should be treated as confidential information, for example, under a contract, it would be relevant to consider whether disclosure of the information would in fact cause detriment of some kind to the confider or another party.

Where no detriment has been, or will be, suffered, equity may refuse to enforce the obligation. But in considering possible detriment, it is important for an agency to keep in mind where the Commonwealth is wishing to impose an obligation of confidence in respect of Government Information, that publication of confidential Government Information will be restrained only if it will injure the 'public interest' if the information is disclosed. As discussed above, 'public interest' issues should be considered by officers in advance of making any decision on what information to protect, or agree to protect, as confidential information.

The analysis is different depending on whether the agency is dealing with Third Party Information 41 or Government Information. Some cases indicate that in certain circumstances there may be 'public interest' grounds for denying protection to Third Party Information that might otherwise be confidential information.

On the basis of these cases, some commentators have argued that there is a 'defence of public interest' to an action for breach of confidence. The disclosure must actually be in the 'public interest', that is, the information must have been disclosed because some serious harm to the public may occur if the confidentiality is maintained, rather than simply being of interest to the public. The law in this area is not settled.

However, an agency should not agree to a request from a person to protect as confidential information Third Party Information that reveals illegal activity, a breach of the law including fraud , serious misbehaviour or matters which involve danger to the public. In respect of Government Information, the law aims to balance the requirements for official secrecy with the public's right to know.

What this means in practice is that the courts will not grant protection for Government Information unless the disclosure of that information will injure the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.

It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

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Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects.

Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. Another possible ground of prejudice to the ordinary business of government could be that disclosure of the terms of a contract especially unfavourable to the government particularly, say, indemnity provision or limitation of liability provisions could prejudice the Commonwealth in relation to its ability to negotiate satisfactory contracts in future.

By analogy, see paragraph 4. Note 2 provides as follows:. It is not possible to identify precisely and exhaustively all the kinds of information which might come within this category. When making an assessment in the Commonwealth environment about what information to protect as confidential information, it is essential that an agency also takes into account the legislative regime under which they operate.

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

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A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Paragraph b 1 recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.

Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.

Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. See also Rule 1. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses.

Paragraph b 3 does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph b 4 permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct. The same is true with respect to a claim involving the conduct or representation of a former client.

Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Hana had taken a protection order against her former husband and gone with her children to another part of the country for a few weeks to get away from him.

Tani gave her new address details when opening a savings account, but the bank mailed her first account statement to her old address because of a technical glitch. Sarah bought a life insurance policy with death and terminal illness benefits through her bank.

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Eight years later, she was diagnosed with a serious illness and lodged a terminal illness benefit claim. You always need to be on your guard when it comes to banking and money matters. We recommend you take the following precautions: How to bank safelyFind out something about the company or individual you are dealing with. Do an in Financial abuse can take the form of: misusing or stealing from the bank accounts of those in their care pressuring a person to sign a legal document, such as a guarantee or mortgage using a power of attorney in a way that is not in the interests of the person who granted it.

Pressure from family member or caregiverElderly people may face pressure from family members for financial support. For ex The Act, which came into full force in , also requires banks to gather more information about customers than previously. This can be inconvenient to some customers, but is a legal requiremen