An Applicant requested details of any payment/settlement with the Director of Environmental Health in relation to his resignation/retirement from the civil service, including salary, pension, healthcare and any other financial settlement.

The Ombudsman agreed with the Applicant that the requested record involves the expenditure of public funds and that there is a legitimate public interest in the expenditure of public funds. She also agreed that a public authority should not be allowed to side step the FOI Law by inserting confidentiality clauses in agreements. However, she found that the FOI Law does not impose a public interest test on actionable breaches of contract. The exemption for actionable breach of confidence in section 17 is absolute.

Ombudsman examined the “Deed of Compromise and Release” and identified a confidentiality clause in the agreement. The Ombudsman found that the information in the agreement was confidential and the result of private negotiations between the parties and only known to those parties. The information was shared in circumstances importing an obligation of confidentiality which was expressly stated in the confidentiality clause, thereby creating a strong expectation of confidentiality. Disclosure of the information in the agreement by either party would open them to a claim by the other party that it was unauthorized, given the explicit statement in the confidentiality clause.

The Ombudsman found that the disclosure of the record would constitute an actionable breach of confidence, and the exemption in section 17(b)(i) was engaged.

The Ombudsman said: “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 decision can be found at www.ombudsman.ky/decisions