A qualified opinion

FOIMan explains who is “qualified” to give an opinion under the exemption for prejudice to effective conduct of public affairs (section 36).

Picture of my Masters graduation

I may be qualified, but I’m not a qualified person

If you’ve ever had a freedom of information request turned down under the exemption at section 36 covering prejudice to the conduct of public affairs, you will be familiar with the phrase “qualified person”. There’s sometimes confusion over what this means, so I thought I’d devote a brief post to it.

How does one “qualify” for this role? Is there an exam? Do you get letters after your name?

The “qualified person” is not a fancy name for the organisation’s FOI Officer as I’ve seen suggested once or twice. And it isn’t just someone picked at random by the public body to make decisions about what can and can’t be released.

The qualified person is someone very specific. The Act itself lists a range of organisations and specifies exactly who the qualified person is. For government departments it is a minister. For the Greater London Authority it is the Mayor of London. Rather bizarrely this means that Boris Johnson can decide whether or not information held by the London Assembly which is supposed to hold him to account should be disclosed, which always struck me as an oddity of the legislation when I worked there. But for many parts of the public sector it is not spelt out in the Act. Instead, it provides that a minister should specify who the qualified person is for those organisations. In practice this means that Secretaries of State or their ministers have issued orders declaring who the qualified person is for areas within their brief. For example, David Willetts, the minister for higher education, has issued such an order indicating that Vice-Chancellors or their equivalent should fulfil this role in the higher education sector (which, helpfully, since the content of the BIS website was moved to www.gov.uk, I cannot now locate!). In local authorities, DCLG has set out that Chief Executives and Monitoring Officers should be the qualified person.

What are the practical consequences of this? Well, if you’re an FOI Officer make sure you know who your qualified person is. I’ve seen responses where the authority clearly didn’t understand this and because of that the exemption is invalid. In the event of an appeal to the Information Commissioner, one of the first things he’ll check is whether the decision was taken by the right person, and he may ask for evidence that the person concerned is the qualified person for that public body. For requesters, it’s worth checking if the person who made the decision was the “qualified” one for the same reason. An authority that doesn’t understand this provision is probably failing to understand other basic requirements of the Act.

For more on section 36, see my exemption index post.

2 comments

  1. Keith Edkins says:

    There’s a third-party copy of Dave Willetts’ authorisation order at

    http://www.gold.ac.uk/media/section36-qualifiedperson.pdf

  2. In fact s36 does not require Boris Johnson as the qualified person to make the decision on release but only to give an opinion as to whether specified prejudice is or is likley to occur – and that opinion must be reasonable and reasonably reached. There are strong indications from the Tribunal etc. that the final decsion should be elsewhere so as not to confuse the very different issues – e.g. public interest should be largely irrelevant to the opinion but will be highly relevant to the release decision. See, on separation of these functions, e.g. McIntyre v ICO EA/2007/0068