Better Regulation Executive

Summary Guidance

• From 1 January 2005, you should treat the amended paragraph 4.6 (as set out below) as an official revision of that currently set out in the Code of Practice on Consultation and should refer only to the amended paragraph on issues of confidentiality.
• You should make it clear in all consultations / consultation documents that from 1 January 2005, a request for confidentiality from the respondent is not enough to guarantee confidentiality. Where respondents specifically request confidentiality, you should only agree with this if it is consistent with the Lord Chancellor's Code of Practice on the Discharge of Public Authorities' Functions [External website] under Part 1 of FOIA.
• Seek advice from your departmental legal team if you are unsure whether you can properly agree to treat information as confidential in accordance with the Lord Chancellor's Code or whether you will be entitled to refuse disclosure of the information in response to a FOIA request. Ensure that you provide a contact telephone number and email address on the consultation document for respondents who have any questions about confidentiality and FOI.
• You should state clearly that, according to the remit of the Freedom of Information Act, all information contained in each response may be published in the public domain.

For consultation, the most obvious effect of the Freedom of Information Act is on paragraph 4.6 of the Code of Practice on Consultation. Until January 2005, paragraph 4.6 clearly indicated that 'if specifically requested,' respondents may expect that any part of their response could be kept confidential: that is personal information as well as information and opinions submitted in response to questions in the consultation document.

FOIA effectively overrides this guarantee. Its implementation means that policy officials will not now be able to give an open-ended assurance of confidentiality on information contained in consultation responses.

General approach: the Lord Chancellor's guidance

The Lord Chancellor has issued a binding Code of Practice on the Discharge of Public Authorities' Functions under Part I of FOIA. This provides guidance on when departments should agree to hold information in confidence. This is to avoid departments agreeing to confidentiality in one context (e.g. consultation) only to find that they have to disclose the information when they get a request under FOIA. The guidance indicates that the following factors should be taken into account:

• whether the information is genuinely confidential in nature
• whether the respondent stipulates that they will only provide the information requested on the condition that it does remain confidential - and if so, how important the information is to the authority
• whether it is possible to agree a limited duty of confidentiality, for example, if the authority clearly states the circumstances when they might disclose the information
• whether accepting an obligation of confidentiality could be justified to the Information Commissioner.

This guidance indicates that the onus is on the authority to justify the need for offering confidentiality on a case by case basis. The fact that the respondent has requested confidentiality will not be decisive. If you follow the guidance in the Lord Chancellor's Code when agreeing to treat information as confidential, then you should be able to treat that information as confidential if you subsequently get a request for disclosure of the information under FOIA. Of course, it will be necessary to keep the information under review, since it might lose its confidential nature because of the passage of time or for other reasons.

Amended paragraph 4.6

In this light, paragraph 4.6. of the 2004 Code of Practice on Consultation has been updated:

Code of Practice on Consultation, Criterion 4.6 - AMENDED

Explain who will use the responses and for what purpose. You should make it clear that, according to the requirements of the Freedom of Information Act (2000), all information contained in the response including personal information may be subject to publication or disclosure. Where respondents request that information given in response to the consultation be kept confidential, explain this will only be possible if it is consistent with freedom of information obligations.

Vulnerable respondents

Treasury Solicitors have advised that safeguards to protect vulnerable respondents, such as children, prisoners or people with psychiatric disorders, will not be reduced by the implementation of FOIA. This is because such types of response, even where the respondent does not ask for confidential treatment, would be likely to trigger an implied duty of confidentiality on the department so that it could undertake to protect the information without breaching the Lord Chancellor's Code of Practice. This means that information provided in response to consultation by vulnerable respondents could (depending on the circumstances) be published anonymously, edited to remove information which might identify them, or wholly withheld. Again, you should check with your own departmental legal team if you think that responses from vulnerable respondents may need to be kept confidential.