Essential Practice 3: Periodic review of active confidentiality notices
As a confidentiality notice may remain in place for an extensive period of time, each body issuing confidentiality notices should have practices in place to continually reassess whether notices should remain active. This ensures that any person’s human rights are not unnecessarily limited when the grounds for the notice no longer exist.
It is important to be aware that while a notice is given to a single recipient, if that recipient discloses the matters in the notice to any other persons (as may be permitted), they must provide a copy of the notice to that person. These additional persons then become bound by the notice which extends the limitations imposed by the notice beyond the original recipient.
Context
In 2022–23 we reported that after assessing IBAC’s active and cancelled confidentiality notices we had engaged with IBAC to resolve discrepancies. We continued this activity during 2023–24 and reconciled active confidentiality notices reported to us by IBAC against 5 years of our own information holdings.1
As a result of raising discrepancies with IBAC, 12 confidentiality notices were identified as invalid without the recipients having been advised that they were no longer bound by the confidentiality notice. This meant that those individuals would have been restricted from discussing these matters freely when there was no longer any legal authority to restrain them.
In response to this, IBAC informed those 12 persons that they were no longer bound by the confidentiality notices and indicated that it would now include active confidentiality notices as an agenda item at its operational meetings to ensure that the requirement for a confidentiality notice was continually reassessed.
IBAC disclosed a separate error with confidentiality notices during the reporting period. See the IBAC chapter in Section 4 of our 2023-24 annual report for more information.
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