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Information, or some of the information, previously released to a limited audience is unlikely to be considered as being available to a member of the general public.
- Frequently asked questions – Obtaining information from third parties
- Introduction
- Confidentiality – an introduction
- Legal professional privilege (LPP)
- Public interest immunity and privilege against self-incrimination
- Obtaining confidential information from third parties
- Release of confidential information to third parties - overview
- Release of information on public interest grounds
- Release of narrative, PIQ and public examination transcripts
Why might I need to obtain information from third parties?
It would be almost impossible for the official receiver to carry out their duties without seeking and obtaining information from third parties. Many other organisations will hold useful information about an insolvent’s affairs and the official receiver should aim to gather that information effectively.
What problems may I encounter when attempting to obtain information?
Most organisations will freely provide the official receiver with information regarding the insolvent’s affairs but, occasionally, some organisations will refuse to pass over information on the grounds of confidentiality or data protection. Sometimes, the organisation does so thoughtfully and in consideration of the law, sometimes it is as a ‘knee-jerk’ reaction.
What is the difference between confidentiality and data protection? Aren’t they the same thing?
Data protection is, in its simplest terms, a statutory protection afforded to an individual’s personal data to limit the use that it can be put to, the extent to which it can be shared and to set rules regarding how it should be stored and protected. Confidentiality, on the other hand, arises from common-law and describes the principle that where one person tells another person something and there is a reasonable expectation that that piece of information will not be disclosed, it should be kept confidential. It is about keeping secrets. Confidentiality, for example, would cover information relating to a trade secret, but data protection would not. Necessarily, data protection and confidentiality over-lap (and are often confused) and where there has been a breach of one there is often a breach of the other.
22.1 Introduction and overview of the chapter
This chapter provides guidance and information to assist official receivers when requested to provide details or papers from case files. This might be during the formal process of disclosure in relation to civil proceedings, or might be the more general form of disclosure where the request is made by a person with interest in the insolvent’s affairs. The chapter also provides advice to assist the official receiver when seeking information regarding the insolvent’s affairs from a third party and there is a reluctance to provide that information.
22.2 Chapter does not cover enforcement issues
The chapter does not provide advice concerning disclosure in relation to disqualification, bankruptcy restriction, or prosecution proceedings being brought by the Secretary of State. Guidance in this regard can be found in the Enforcement Investigation Guide.
22.3 Confidentiality and disclosure – general
Organisations such as the official receiver, banks, doctors or accountants will hold information that is confidential in nature. For example, correspondence concerning the insolvent’s affairs or the information given in the PIQ and interview will generally be confidential and should not be disclosed. The law, however, operates in such a way as to compel, or allow, organisations to disclose confidential information in certain circumstances, as follows: in relation to civil proceedings (disclosure) to assist an organisation to carry out a public function a data protection subject access request
22.4 Data protection and confidentiality
When dealing with a matter relating to the release of an individual’s personal information, whether as sender or recipient, the official receiver will also have to consider the provisions of the data protection legislation. Where an individual’s personal data has been disclosed in breach of the data protection legislation, it is likely that a breach of confidentiality has also taken place, and visa-versa [Murray v Express Newspapers plc [2009] Ch 481].
22.5 Confidentiality – general
Confidential information is information held by a person that has a limited availability (that is, information that is not generally publically known) and is of a specific character (that is, not vague), whether or not expressed as confidential [Robb v Green [1985] 2 QB 315; Re Dalrymple’s Application [1957] RPC 449].
22.8 Legal professional privilege
Over time a principle of law has developed that communications between a client and their lawyer in relation to the seeking of advice or the preparation of litigation should remain secret. This is so as not to stifle a person’s ability to seek advice through fear that the information revealed will be used improperly, or against them. [Anderson v Bank of British Columbia (1876) 2 ChD 644 CA; Three Rivers District Council v Governor and Company of the Bank of England [2005] 1 AC 610; Balabel v Air India [1988] Ch 317]. Legal professional privilege is confined to the legal profession, but is applied broadly in scope within that profession to include not only barristers and solicitors, but in-house legal advisors, intellectual property agents, licensed conveyancers, legal executives and foreign legal advisors. [Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (no 2) [1972] 2 QB 102] More detailed guidance to assist in identifying whether material is privileged can be found in the Enforcement Investigation Guide.
22.9 Difference between privilege and confidentiality
All privileged communications are confidential, but not all confidential communications are privileged. Confidential information can be used in court proceedings, although achieving its production will sometimes require a court order. By comparison, material that is privileged may not be deployed in court unless that privilege is waived.
22.10 Waiver of privilege
Privileged material can become non-privileged if the privilege in the material is waived by the client. Broadly, privilege can be waived in three ways: intentional of express waiver – where, for example, the document is intentionally used in court proceedings by the party owed privilege unintentional waiver – where a privileged document is sent by mistake. Where the mistake in doing so is obvious, then privilege has not been waived and the document should be returned immediately collateral waiver – where only a section of privileged material is provided and has the effect of waiving privilege in respect of the whole of the material document. The principle of a collateral waiver recognises the risk of a document being used out of context Documents can be subject to a limited waiver where waiver is given only in respect of a limited set of circumstances – for example in relation to particular proceedings. Only the ‘owner’ of the right of privilege can waive the right, not the lawyer or any other third party – including a trustee in bankruptcy. A bankrupt cannot be compelled to waive the right to privilege [Leeds and another v Lemos [2017] EWHC 1825 (Ch)].
22.15 Public interest immunity
Public interest immunity is essentially a type of confidentiality, though it also has some bearing on litigation. It is the principle, founded on public policy and recognised by Parliament [Crown Proceedings Act 1947 section 28(1)] that documents may be withheld or the answer to a question refused on the grounds that release would damage the public interest [Conway v Rimmer [1968] AC 910]. Public interest immunity can only be claimed by the Crown and not by the individual to whom the relevant document relates [Anthony v Anthony (1919) 35 TLR 559]. It is unlikely that such immunity will be used by or against the official receiver.
22.16 Privilege against self-incrimination
The privilege against self-incrimination in civil matters is limited to the provision of information that would open the individual to action for criminal offences and penalties under the laws of the UK (including EU laws having effect in the UK) [Civil Evidence Act 1968, section 14]. A director or bankrupt cannot rely on the privilege against self-incrimination to avoid providing the official receiver with information regarding the company’s/their affairs [Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 CA].
22.17 Third party refusal to provide information on the grounds of confidentiality
This section provides guidance and information to assist the official receiver when is seeking information from third parties and the provision of that information is refused on the grounds of confidentiality.
22.18 Obtaining consent to release of information
On questions of confidentiality, it is generally simplest to arrange for the person to whom the duty of confidentiality is owed to provide a general or specific consent (waiving the duty) which may then be provided by the official receiver to the person from whom the information is sought. This, of course, assumes that such co-operation can be obtained.
22.19 Duty of confidentiality owed to insolvent passes to official receiver - companies
Where a professional such as a solicitor or accountant (or any other person claiming a duty of confidentiality) has been instructed by the company the duty of confidentiality is owed to the company (not the directors or shareholders). The official receiver, as liquidator, can therefore authorise disclosure to them. The position is more complicated if the professional considers they also acted for the directors personally (rather than as officer of the company). The nature of the information sought should assist in deciding who the client was [Buttes Gas and Oil Co v Hammer [1982] AC 888]. Where information is refused on these grounds it may be possible to arrange for the directors to consent to the release of the information.
22.28 Release of information to third parties – general
Much of the information gathered by the official receiver during enquiries into the affairs of the insolvent will be confidential in nature, especially in respect of bankruptcies. Although there is no limit in the Act to which information obtained under compulsion can be put, the PIQ and narrative statement, in particular, are likely to contain information of which the majority is confidential. The official receiver should also consider the guidance in this chapter concerning the handing and disclosure of material which has attracted legal professional privilege (LPP). This section will be relevant to official receivers if they are releasing information proactively (to support their own statutory functions) or reactively (when asked to do so by some other authority).
22.29 Considerations when releasing information (Freedom of Information Act 2000)
Any written request for information held by the official receiver from a third party will be covered by Freedom of Information Act 2000 (FOI). It should be noted that where the official receiver is holding the information requested solely by virtue of their position as statutory office holder, FOI does not apply). The official receiver is acting as a statutory office holder when provisional liquidator, liquidator, interim receiver, trustee, and also if carrying out an investigation (regardless of whether still liquidator or trustee). It follows, therefore, that all files created by official receivers when acting in any of the above capacities are excluded from the provisions of FOI and, where the request is a valid FOI request, the official receiver will have to issue a refusal notice.
22.30 Considerations when releasing information (data protection)
When releasing information, the official receiver should do so with care and only after considering the effect of the data protection legislation. Against this, the official receiver should take a practical approach so that where for example, it is possible to obtain the consent of the person to whom the duty of confidentiality is owed, this should be done rather than forcing the requestor of the information down the route of court action to obtain the information.
22.33 Release of confidential information allowed where it is in the public interest or required by statute
The courts will allow a breach of confidence only where it is in the public interest to do so. In each case the official receiver will be required to carry out a balancing exercise to establish whether the public interest is better served by releasing the information or by keeping it confidential.
22.34 Deciding whether there is a public interest in releasing information
In deciding whether there is a public interest in releasing information, the official receiver will need to judge what is reasonable to disclose to meet the stated purpose in the request, also taking into account the seriousness of the reason for the request and the effect of not complying with it. Where specific information is requested to assist in the investigation of a criminal matter, it is likely that the public interest test will be met. The official receiver will, in particular, be obliged to release the information where there is a statutory requirement to do so. The official receiver should keep in mind that where a request for information is wide-reaching (looking like what is known as a ‘fishing expedition’), they are not obliged to disclose all or any of the information.
22.35 Information to be sought to assist in balancing the public interest
Where an official receiver receives a request to release confidential information held in a case file (which requests will generally come from regulatory authorities, including the Police), they should obtain details, in writing (which can include e-mail), of the following: precise details of the information being requested precise details of the purpose or purposes for which the information is required, how it may be used and to who it may further be disclosed to precise details of the legislative authority for the request or data protection exemption (in respect of an individual’s personal data) the requestor is seeking to engage details of the prejudice that may be caused to the stated purpose if the requestor is not provided with the requested information the requesting person’s position or authority in requesting the information the response will assist the official receiver in balancing the public interest and assessing any obligation to release the information
22.36 Release of the narrative statement and PIQ
The narrative statement and PIQ are obtained under compulsion [sections 235; 291] and will contain confidential information including an individual’s personal data. There is a strong presumption that this confidentiality should be observed, because it facilitates and promotes the proper performance of the duties of the official receiver. The narrative statement and PIQ, and information contained therein should only be released where there is a strong public interest or statutory requirement to do so or where the person giving the statement/information has given their consent, in writing, to the general or specific release of the statement/information. In particular, it has been held that the official receiver may release statements obtained under compulsory powers to aid the investigations of a prosecuting authority, with or without consent [R v Brady (Paul Clement) [2004] 1 WLR 3240]. See chapter 17 regarding the provision of a copy statement/PIQ to an interviewee.
22.37 Release of private examination transcript
Information obtained pursuant to a private examination is sometimes recorded in a transcript. Unless the court orders otherwise, inspection of the transcript is limited to the applicant for the private examination and those who would have been able to apply for an examination1 (essentially, the office-holder) [rule 12.20]. In this regard, the court may order release of the information if it will assist in the winding-up of the company, or it is otherwise in the interests of justice in a particular case, but not for any other reason [Barlow Clowes Gilt Managers Ltd [1992] Ch 208; Re Arrows (No 4) [1994] 3 WLR 656]. If the official receiver is under a statutory duty to release the transcript then it should be released [Re Arrows (No 4) [1994] 3 WLR 656; Re Trachtenburg [1993] BCC 492; R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1]
In most cases, you must consider only the release of the information in the matching document. However, if it is clear from the content or context of the matching document that you hold additional relevant information in other records, then you need to investigate whether that information also falls within the scope of the request.
Do we have to release the information? Yes, under the law you must release the information unless there is good reason not to. For more about when you may be able to refuse the request, or withhold some or all of the information, see When can we refuse a request? .
Individuals have the right to access and receive a copy of their personal data, and other supplementary information. This is commonly referred to as a subject access request or ‘SAR’. Individuals can make SARs verbally or in writing, including via social media.
Common law confidentiality is not codified in an Act of Parliament but built up from case law through individual judgments. The key principle is that information confided should not be used or disclosed further, except as originally understood by the confider, or with their subsequent permission.
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