Duty of confidentiality owed by public bodies

In the recent case of R (on the application of Ingenious Media Holdings plc and another) v Commissioners for Her Majesty’s Revenue and Customs [2016] UKSC 54 the claimant (“Ingenious”), a media investment and advisory company, applied for judicial review against HMRC for revealing confidential information in an interview with a journalist.

In 2012 David Hartnett (DH), the then Permanent Secretary of Tax at HMRC, provided a background briefing to the press which included comments on the claimants company, which promoted film investment schemes and used tax relief that was available.

The Times newspaper published two articles in 2012, which directly quoted DH as stating that film investment schemes allowed £5bn of tax avoidance. DH insisted that the information was given in strict confidence. DH also argued that his disclosure was permitted under section 18 of the Commissioners for Revenue and Customs Act 2005 (the “Act”), which allows for disclosures of confidential information when done in connection with a function of HMRC, as it was in the interests of HMRC to have a relationship with the financial press.

The claim was brought by way of judicial review, but in substance involved a claim for breach of confidentiality. The claim failed in the High Court. The court took the view that it could only intervene if DH did not believe that speaking to journalists would assist HMRC in its tax collection functions. The claim was dismissed as the disclosures were intended to be off the record, and therefore not irrational, and for a legitimate and proportionate purpose.

The Supreme Court noted that the lower courts had not been referred to the common law of confidence. When confidential information is received to benefit a public duty, the recipient will owe a duty to the provider (Marcel v Commissioner of Police of the Metropolis [1992] Ch 225). HMRC argued that section 18(2)(a)(i) of the Act was an explicit statutory provision that can override the principle. The court rejected this argument. The court confirmed the principle that general words in a statute cannot override fundamental rights, and that the more general the words, the harder it is to rebut the presumption that the rights remain. In reversing the decision of the lower courts, the court further emphasised that public bodies were not immune from the ordinary application of the common law, including the law of confidentiality.

Further key points.
• The Court made clear that “a disclosure of confidential information might sometimes be permissible on a restricted basis. However, an impermissible disclosure of confidential information was no less impermissible just because the information was passed on in confidence”
• The law relating to confidential information therefore imposed a more severe restriction on disclosure by HMRC than was imposed by public law alone.
• Public bodies which hold confidential information will need to consider the general law of confidence before making disclosures of information.

Confidentiality

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