4.1 Confidentiality
The Code provides that you must not disclose confidential information, or information that should reasonably be regarded as confidential or private, without the express consent of a person or body authorised to give such consent. If you cannot obtain such consent, you should assume it is not given.
The Code makes it clear that confidential information is not only information deemed to be confidential by statute. It can also include discussions, documents and information that are not yet public, or were never intended to be public.
Confidential information includes:
commercial information such as information relating to a contract or a contractor’s business
personal or sensitive information such as information relating to an individual’s employment or health
information that is confidential as a result of a statutory provision
information discussed in closed or private sections of meetings
legal advice obtained by the Council (whether provided by officers or external legal advisers) – this is covered by legal privilege and must not be disclosed without the Council’s permission.
The Code states that you may use confidential information only to undertake your duties as a councillor. It must not be used for personal or party‑political advantage, or to discredit the Council – even if you believe the information should be publicly available.
Sometimes confidentiality relates to timing, in that the intention may always be to release the information at a later stage. However, you must respect any requirement for confidentiality even if you consider the information should be released earlier.
You should seek advice if you are in any doubt about whether documents, information or advice are confidential, particularly if you intend to disclose content to any outside body or individual.
Activity 3 Confidentiality
A journalist approaches you and asks you to comment on the sale of a council building.
What, if anything, can or should you say? Which of the following factors could be relevant to the question of whether you can make any comment and whether there are any confidentiality considerations?
a.
Yes
b.
No
The correct answer is a.
a.
Yes
b.
Not necessarily
The correct answer is b.
a.
Yes
b.
No
The correct answer is a.
a.
Yes
b.
No
The correct answer is a.
a.
Yes
b.
No
The correct answer is b.
a.
Yes
b.
No
The correct answer is b.
a.
Yes
b.
No
The correct answer is a.
Discussion
It is usually appropriate to make no comment and refer the journalist to the Council’s communications or legal teams. You should contact those teams in advance about any comments you are proposing to make.
Even if the journalist already has some information, this does not necessarily mean it is in the public domain. Confidentiality may be a matter of timing: the Council may intend to release information but not until a later date, for example when any contract for the sale concludes. You must respect any requirement for confidentiality even if you do not agree with it.
In determining whether any information about the sale is confidential, consider whether you know about it because of your role as a councillor. You should consider how you became aware of it. Information may be explicitly marked as confidential (for example in a document headed ‘confidential’) or officers may advise that it must be treated as such. It may also be clear from the nature of the information or from the circumstances in which it was provided that it is confidential.
Confidential information must not be disclosed or used for personal advantage or to discredit the Council. A complaint about disclosure can be made regardless of intent or impact.
You should also consider whether:
- any comments you make could be perceived as public criticism of officers – you should be conscious of the overall interests of the Council even if you wish to advocate a political point
- whether you are likely to be involved in any formal decision-making concerning disposal of the property.
If it appears that the journalist has received confidential information, you should consider advising officers so they can assess what steps may be taken to limit any further disclosure.
4 General conduct
