21 February 2022
ATISN 15907 – Overtime and holidays
Thank you for your request to the Welsh Government for information under the Freedom of Information Act (2000) received on 30 December 2021. You requested the following:
- All documentation and date (including emails, meeting minutes and guidelines) in relation to the overtime payments and pay during annual leave settlement of 2021 in relation to the Flowers vs EEAST payment. Specifically, all documentation in relation to the payment of employees who have left employment in the NHS before 21 March 2021, including, but not limited to, why this decision was made, the legal basis for this and how this payment was considered justified
Welsh Government holds some of the information you have requested. However, this information has been redacted under Section 41 of the Freedom of Information Act 2000. This exempts information provided in confidence, and where releasing it would constitute an actionable breach of confidence. A rationale for the use of this exemption is provided at Annex 1 to this letter.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit,
or Email: Freedom.email@example.com
Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office,
However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Section 41: Information provided in confidence
Section 41 sets out an exemption from the right to know where the information requested was provided to the public authority in confidence and disclosure of the information would give rise to an actionable breach of confidence.
S 41 Information provided in confidence:
(1) Information is exempt information if –
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
Section 41 is an absolute exemption and is not, therefore, subject to the public interest test. For the purposes of s41(1)(a), I can confirm that the information has been provided to Welsh Government by a third party.
‘Confidential’ is not defined in the Act; it’s a common law concept and the test of confidentiality involves determining whether information was obtained in confidence, whether the information has the necessary ‘quality of confidence’ and whether its disclosure would constitute an actionable breach of confidence. For the purposes of s41 a breach will always be actionable if:
- the information has the necessary quality of confidence;
- the information was imparted in circumstances importing an obligation of confidence; and
- there was an unauthorised use of the information to the detriment of the confider (the element of detriment is not always necessary).
This three stage test is taken from the case of Coco v Clarke. For the information in question, the Welsh Government believes it has the necessary ‘quality of confidence’; the information is not otherwise accessible and it is not trivial. Further, the information was communicated in circumstances importing an obligation of confidence.
In light of the above, the information has been withheld under section 41 of the Freedom of Information Act.