Reasonably forgetful

FOIMan warns that a qualified person should be careful what they say in public – it might come back to haunt them…

Downing Street and Whitehall Street SignsSection 36(2)(c) of FOIA allows public authorities to refuse to provide information where, in the reasonable opinion of the qualified person, the effective conduct of public affairs would or would be likely to be prejudiced. As explained previously, the qualified person is either specified in the Act, by Ministers, or is the most senior decision-making body in the organisation.

But what would prevent an opinion from being “reasonable”? The fact that the Commissioner or a Tribunal panel might disagree with it isn’t sufficient. In the past, sometimes appeals of section 36 cases have found that failure to properly document the decision, or to make it at the right time, might prevent an opinion being reasonable. Occasionally the substance of the opinion might be found not to be reasonable. Unusually though, in a recent case before the First-Tier Tribunal (FTT) the qualified person themselves had made the key argument in favour of disclosing the information. Only it wasn’t in the documented opinion, but at a Select Committee hearing sometime beforehand.

The FTT case arose from a request asking for correspondence between Tony Blair and the Advisory Committee on Business Appointments (ACOBA). Ex-Ministers are expected to consult ACOBA if they are considering accepting a business appointment. It is one of the checks put in place by the civil service to try to avoid conflicts of interest when Ministers move on.

The qualified person for ACOBA is Baroness Browning, its chair. The appellant – the Deputy Investigations Editor of the Daily Telegraph – pointed out that the opinion given by Baroness Browning made no reference to the importance of the “fourth estate”, journalism. Which as it turned out seems to have been a bit of a mistake.

Why? Because previously both Baroness Browning and her predecessor had explained to MPs that the scrutiny of business appointments by the Press played an important role in encouraging Ministers and ex-Ministers to cooperate with ACOBA. So the Tribunal agreed with the appellant that the qualified person’s opinion could not be reasonable if it failed to acknowledge this important role played by journalism. Especially given that they themselves had previously pointed to it as being so important.

Once again, we see that the oft-repeated mantra that FOI is applicant and purpose-blind is an over-simplification. There have been quite a few decisions over the years that recognise that the aims of journalists in particular may nudge decisions in their favour.

Of course, this case also suggests that senior officials ought to be careful what they say on record, especially if they are a qualified person for FOI purposes. Their comments might well come back to haunt them.

Source: E. Malnick v IC, EA/2016/0055, 3 November 2016 (with thanks to the Campaign for Freedom of Information for highlighting)

One comment

  1. David Matthew says:

    If you follow the argument that was is said or written years earlier should be guarded has been what Government and their supporters have tried to curtail access under FOI and that the reduction in the 30-Year Rule people would not be as open and frank if they knew it could end up in the public domain after 20 or so years. I don’t see an issue here unless as an individual you are not prepared to defend those comments. Often civil servants will write comments about other officials because they believe that they are not being helpful to them or obstructive, as they see it at the time. One should recognise the differences in public attitudes over the years on a particular subject may not be the same nowadays.