ICO issues Decision 43 involving an FOI request for settlement payments

An Applicant made a request under the Freedom of Information Law 2007 for the amounts of the settlement payments made to Messrs. Rudolph Dixon, Stuart Kernohan and Burmon Scott by the Government. The Portfolio of Legal Affairs refused access to the information on Mr. Kernohan on the basis of section 3(5)(a) which places records resulting from judicial functions outside the scope of the FOI Law, and withheld all three agreements pursuant to the exemptions in sections 17(b)(i) (actionable breach of confidence), 17(b)(ii) (contempt of court), 23(1) (personal information) and 20(1)(d) (effective conduct of public affairs).

In this Decision, the Acting Information Commissioner rejected the application of section 3(5)(a) to the Kernohan agreement since that agreement is separate from the Court Order itself, but upheld the decision of the Portfolio of Legal Affairs to exempt all three agreements on the basis of the exemption in section 17(b)(i) as it would be an actionable breach of confidence to disclose them.

As the Acting Commissioner found that the exemption in section 17(b)(i) applied, the other exemptions were not considered.

In examining the application of section 17(b)(i), the Acting Commissioner also made recommendations on the use of confidentiality clauses by Government. In the Decision Mr. Liebaers states, “public authorities should carefully consider whether confidentiality is necessary and appropriate before agreeing to sign an agreement containing a confidentiality clause, and should not use such clauses unless absolutely necessary, such as may be the case in the course of litigation.”

The full text of Decision 43 is available on the ICO website at www.infocomm.ky/appeals.