FOI Man looks at the key features of the controversial Freedom of Information Act exemption covering the effective conduct of public affairs.
FOI Officers sometimes find themselves in a tricky situation. They’re told that the information that’s been requested must not be disclosed. They sympathise with the reason, but there’s no suitable exemption. It’s not information provided in confidence. Neither is it commercially sensitive. Nothing fits. What do they do?
Well, that’s really what section 36 is for. It’s the “Get Out of Jail Free” card for public authorities that want to withhold information. The safety net.
It’s controversial, precisely because of this broad nature. But sometimes it’s the only option for a public authority that feels it has a justifiable reason to withhold information. And it is subject to important safeguards.
Any information that a public authority needs to withhold but doesn’t fit other exemptions. Most often policy information not covered by the section 35 policy formulation exemption applying to central government departments. As section 35 can’t be used by local authorities, for instance, section 36 will often be used instead for similar kinds of information.
Things that FOI Officers need to know
- Government departments can’t use section 36 if section 35 applies (s.36(1)(a)).
- The exemption applies only if a “qualified person” gives a “reasonable opinion”.
- The qualified person for each authority is set out either at s.36(5)(a)-(n) OR is an officer of the public authority designated by a Minister – you may need to search relevant departmental pages on http://www.gov.uk or ask the government department responsible for your sector to tell you who has been authorised for this purpose (in some cases, the whole public authority has been authorised – in these cases, the primary decision-making body of the organisation should give its opinion (para. 26)).
- The most recent guidance from the Information Commissioner suggests that he interprets “reasonable” to have its “plain meaning” (pp. 6-8). The guidance says: “If the opinion is in accordance with reason and not irrational or absurd – in short, if it is an opinion that a reasonable person could hold – then it is reasonable.”
- Whilst the Commissioner and Tribunal will mostly be concerned with the reasonableness of the opinion, the process used to reach that opinion may well be a factor in deciding whether that opinion is reasonable. So being able to demonstrate that a clear and logical process is in place for seeking the opinion of the qualified person is essential.
- Reasons why an opinion might be found not to be reasonable include inadequate records of the process of seeking the opinion (paras. 54-9), seeking an opinion later than internal review (para. 24), or if the decision takes into account irrelevant matters. There needs to be evidence that the qualified person had a full understanding of the information being considered, not necessarily that they’ve read all of the information concerned (para. 80).
- The opinion should indicate if disclosure “would, or would be likely to” cause the prejudice claimed. The Information Commissioner’s guidance (pp. 8-9) suggests that “would” will only apply where there is more than a 50% chance of the prejudice occurring.
- What prejudice is being considered? If disclosure would or would be likely to prejudice the convention of collective responsibility of Ministers (ie Cabinet confidentiality) or the equivalent in the devolved administrations; whether disclosure would inhibit the “free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation”; or whether disclosure “would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.” Records (ie any submission made to the qualified person) must state which applies (para. 54), and in the case of the latter explain what prejudice is being claimed (MOJ guidance, p. 9).
- The Information Commissioner or Tribunal can’t rule against an authority just because they don’t agree with the opinion; if the opinion is reasonable and reached through a reasonable process, then the exemption will apply.
- Note that a qualified person’s opinion is not required if applying section 36 to statistical information (see ICO guidance on section 36 p10 for examples of where this will apply).
- Given the wide scope of section 36, most cases come down to whether the public interest test has been applied correctly; clearly the Information Commissioner or Tribunals have much more scope for overturning an exemption on these grounds. So public bodies need to take great care in formulating their public interest arguments and will want to be able to produce strong evidence to support their arguments.
Things that requesters need to know
- In considering a challenge against the application of section 36, the first thing to consider is whether procedural requirements of the exemption have been correctly applied.
- Has the “opinion” been obtained from the correct person? It is not possible for the qualified person to delegate their authority, so if the opinion was given by someone relatively junior in the organisation (eg the FOI Officer), it is unlikely the exemption applies.
- Has the public authority stated which prejudice/inhibition they are claiming?
- Is there anything that suggests the opinion has not been reached reasonably? It might be difficult to judge this without making a “meta-request” (ie an FOI request for the papers relating to the handling of your request) to look into how the opinion was reached.
- Does the opinion appear to be irrational? Difficult to argue, but if there is evidence that irrelevant factors have been taken into account, that would be something to challenge.
- As suggested above, if the right procedures appear to have been followed, the best way to challenge a decision will be to look at the public interest arguments. If there is a strong public interest in disclosure that does not appear to have been considered, it would be worth putting this forward in your request for internal review or complaint to the Information Commissioner.
Essential case law
- Guardian Newspapers Ltd and Heather Brooke v Information Commissioner and BBC, EA/2006/0011 and 0013, 8 January 2007
- Roberts v Information Commissioner & DBIS, EA/2009/0035, 20 November 2009
- Thackeray v Information Commissioner, EA/2011/0069, 10 March 2011
- Information Commissioner’s guidance on Prejudice to the Effective Conduct of Public Affairs, March 2013
- Information Commissioner’s guidance on recording the qualified person’s opinion (includes template form for seeking and recording opinion)
- B. Montague and L. Amin (2012), FOIA without the Lawyer, Centre for Investigative Journalism, pp.52-56