Confidentiality and disclosure
In the UK, the law governing confidentiality and the disclosure of confidential information is part of the common law rather than being based on statute. Information is ‘confidential’ if there is a restriction on its disclosure, normally placed by the person or organisation that provides it. Restrictions can be formal (for instance, a contract of employment may forbid the disclosure of business information to unauthorised persons), or merely implicit in the nature of the information. In practice, if an oral history interviewee states that information is confidential, then it must be treated as such by interviewers and custodians. A person or organisation who obtains confidential information has a duty not to disclose any of it unless authorised by the interviewee. Interviewees can sue interviewers for unauthorised disclosure and obtain restraining orders and damages.
A ‘duty of confidence’ can arise without the supplier of information explicitly stating that it is to be treated as confidential. If the information is of a confidential nature or is supplied under circumstances which indicate that the supplier wishes it to be treated as such, then a duty will arise. If any form of agreement is made to keep information confidential, breaking it is likely to amount to breach of contract which is actionable.
Confidential information might include information about, for instance:
- a person’s personal life or conditions of employment (which will also be covered by the Data Protection Act);
- an employer’s work;
- inventions or discoveries;
- contents of a private diary.
It is worth noting that a duty of confidence can survive the death of the person to whom the duty was originally owed. Any obligation to preserve the confidence will decline with time, but this might be a long time. Confidential information in Northern Ireland, for instance, might need to be kept confidential for generations.
Much of the content of oral history interviews could be defined as confidential. To avoid possible legal action:
- recording agreements should state the uses to which interviews will be put, and no other use be made of them without the consent of the interviewee or their successors. Ownership of the physical recordings, transcripts or copyright is immaterial;
- interviewers and custodians should not pass on confidential information without permission;
- interviews and transcripts should be kept locked in secure conditions.
It is difficult and often impossible to anonymise interviews and transcripts effectively. Interviewers and custodians should avoid agreeing to anonymise interviews unless the content is of great value or significance, and there is no alternative. Agreements to mask the identity of interviewees must have a time limit.
A person or organisation in possession of information relating to criminal activities is legally obliged to disclose it to the police, if legal proceedings or investigations are under way in connection with those activities. There is no legal obligation to disclose information if no investigation is in progress and there has been no approach from the police, but deliberately evading questioning by the police or being evasive or untruthful when questioned may result in you being charged with perverting the course of justice. In the course of investigations the police may obtain a court order obliging interviewers and custodians to disclose the content of interviews, thus overriding any confidentiality agreements made with interviewees. Courts may similarly require interviewers or others to give evidence based on the content of interviews. Lying in court can lead to a conviction for perjury and failing to obey a court order may lead to a conviction for contempt of court.
Interviewees who are likely to provide information about criminal activities should be made aware that it may have to be disclosed to investigating police, even if access for everyone else has been restricted.