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An organisation can withhold personal information from a requester if the information is evaluative material.
"Evaluative material" is evaluative or opinion material compiled solely for one of the below purposes:
Organisations need to be able to get evaluative information so they can make good decisions about things like employment, giving awards or making decisions about insurance. An organisation may not be able to get meaningful information unless the person supplying it can be sure it will be kept confidential and not given back to the person concerned.
For instance, a job referee may not be completely honest about an applicant's weaknesses if they think that what they say will be told to the applicant. In order for the organisation to see the full picture, it needs to preserve the referee's confidence.
| 50. Evaluative material as reason for refusing access to personal information (1) An agency may refuse access to any personal information requested if— |
| (a) the information is evaluative material and the disclosure of that information or of the information identifying the person who supplied it would breach an express or implied promise— |
| (i) that was made to the person who supplied the information; and (ii) that was to the effect that the information or the identity of the person who supplied it, or both, would be held in confidence; or |
| (b) the information is evaluative material that was made available by the agency to another agency, and that other agency may refuse to disclose the information under paragraph (a). |
| (2) In this section, evaluative material— |
| (a) means evaluative or opinion material compiled solely— |
| (i) for the purpose of determining the suitability, eligibility, or qualifications of the individual to whom the material relates— |
| (A) for employment or for appointment to office; or (B) for promotion in employment or office or for continuance in employment or office; or (C) for removal from employment or office; or (D) for the awarding of contracts, awards, scholarships, honours, or other benefits; or |
| (ii) for the purpose of determining whether any contract, award, scholarship, honour, or benefit should be continued, modified, or cancelled; or |
| (iii) for the purpose of deciding whether to insure any individual or property or to continue or renew the insurance of any individual or property; but |
| (b) does not include any evaluative or opinion material described in paragraph (a) that is compiled by a person employed or engaged by an agency in the ordinary course of that person’s employment or duties. |
Case Note 90682
Case Note 96052
Case Note 88333
Case Note 85552
What is evaluative or opinion material?
Evaluative or opinion material is just that - information about what someone thinks about the person who's asking for the information. For example, it could be a judgment about a person's skills, their character, their qualities or their eligibility for an award.
What does "compiled solely" mean?
The organisation needs to compile the evaluative material. It must have collected it to enable it to make its decision.
To be able to refuse a request for the information, the oragnisation needs to have compiled the evaluative material solely for one of the listed purposes. If it has compiled the information for other purposes as well, it cannot refuse the request.
When will information be confidential?
The organisation must be able to show that the person who gave them the evaluative material (the supplier) did so on a clear understanding that the material was to be kept confidential or that they wouldn't be identified as the source of the material.
How will I know that information was supplied in confidence?
It's easiest where there's a record that the supplier asked for the information to be kept confidential. It's usually simple for the organisation to make sure that it knows what the supplier's expectations of confidence are (if any) and to make a note of them.
If there's no record, to claim confidentiality it has to be obvious from the circumstances that the supplier must have expected that it would be kept confidential. Would the supplier have given the organisation the evaluative material if they thought the organisation would hand it over to the person concerned? If the answer is no, then it's confidential.
If I promised confidentiality to the person who gave me the information, can I can withhold everything?
It depends what the promise covered. Sometimes the supplier wants to remain anonymous, but isn't worried if the organisation gives the evaluative material itself to the person concerned. Organisations should make sure it's clear what is confidential - is it just the supplier's identity, or is it the information as well?
The basic rule is that the organisation needs to give as much of the material as possible to the requester, as long as it doesn't breach confidence. A summary of the information is often a useful way to go.
It's not fair if I can't see the information - what do I do?
It's hard if you can't see what others have said about you. But confidentiality is important too.
What you can do is to ask the organisation to give you a summary of what was said, or to give you the main points so that you have an idea of what happened. Sometimes this won't be possible, because even a summary could breach confidentiality, but it's worth a try.
