46.Section 17 imposes a confidentiality obligation on the Commissioner, the Commissioner’s staff, and any agent of the Commissioner. It also covers persons who have previously held any of those positions. Subsection (1) creates an offence, which applies only to those persons, of disclosing information obtained in the course of carrying out the Commissioner’s functions. Information which was in the public domain at the time of the disclosure, or had previously been in the public domain, is not covered by the offence.
47.Subsection (3) sets out circumstances in which disclosure of information which would otherwise be covered by the offence is authorised. These circumstances are: where the information is disclosed with the consent of the person from whom it was obtained, where disclosure was necessary for the exercise of the Commissioner’s functions, for example the disclosure of information obtained from one criminal justice body to another criminal justice body in the promotion of joined-up trauma-informed practice, and where disclosure was made for the purposes of criminal or civil legal proceedings or the investigation of an offence or suspected offence. Subsection (4) goes on to provide that where disclosure was made for the purposes of the Commissioner’s functions, it must not include the disclosure of information which would be likely to lead to the identification of any victim, witness, or person suspected (but not charged) with committing an offence.
48.Subsection (5) sets out that the penalties which might be imposed on a person convicted of the offence are a fine up to the statutory minimum on summary conviction, or a fine on conviction on indictment.
Crown Application Information gathering Section 17 – offence of Commissioner disclosing confidential information