Breach Of Confidentiality – There Is No ‘Off-The-Record'!

The UK Supreme Court has found that a public body, HM Revenue & Customs ("HMRC"), breached its duty of confidentiality to a taxpayer after a senior official disclosed confidential information to journalists which was later published in a national newspaper (R (on the application of Ingenious Media Holdings plc and another) v Commissioners for Her Majesty's Revenue and Customs [2016] UKSC 54).

The decision offers valuable guidance for organisations in respect of the duty of confidentiality owed to third parties. Though not binding on the Irish courts, this decision may be of persuasive authority and organisations involved in the handling of client / third party information should take note.

BACKGROUND

The taxpayer in this case is a company which promotes film investment schemes. In June 2012, the then Permanent Secretary for Tax gave an off-the-record briefing to journalists from a national UK newspaper concerning film investment schemes. Some comments made by the Permanent Secretary were later published in the newspaper (citing a "senior Revenue official"), including comments implicating the company in tax avoidance schemes and statements pertaining to the company's founder.

The UK Supreme Court reversed earlier judgments by the High Court and the Court of Appeal, ruling that the information supplied to the journalists was confidential in nature and that HMRC owed a duty of confidentiality to the taxpayer in respect of such information.

DUTIES OF CONFIDENTIALITY

The UK Supreme Court acknowledged the well-established 'Marcel' principle of confidentiality which dictates that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty - to the person from whom it was received or to whom it relates - not to use it for other purposes.

Duties were also owed by virtue of statute in this instance, namely section 18(1) of the Commissioners for Revenue and Customs Act 2005 which states that HMRC officials may not disclose information which is held by HMRC in connection with a function of HMRC. The UK Supreme Court noted that HMRC had previously invoked said provision as a reason for refusing to give certain information to the House of Commons Public Accounts Committee.

NARROW INTERPRETATION OF EXCEPTIONS TO OBLIGATIONS OF CONFIDENTIALITY

While HMRC's...