Tag Archive for FOI Section 36

Caught in limbo

FOIMan finds that the absence of a Northern Ireland government is having unforeseen consequences for FOI applicants.

Stormont

Stormont, home of the Northern Ireland Assembly © Paul Gibbons 2018

There are no doubt times when many of us think we’d be better off without politicians – you could be forgiven if now was one of those times. We should be careful what we wish for.

In Northern Ireland, there have been no ministers in government since the late Martin McGuinness resigned as Deputy First Minister in January of last year. Most people would probably assume that this doesn’t have a significant effect on the day-to-day running of government departments whether they be in Westminster or Belfast. Civil servants can keep things running. But perhaps surprisingly, many quite crucial but low level decisions cannot be taken without at least the signature of a minister. For example, on visits to Belfast to deliver training in the last year, I’ve heard taxi drivers grumble about delays to road improvements simply because there is no minister to give the nod to proposed schemes. There will be lots of quite simple matters that most of us take for granted that are not happening in Northern Ireland simply because there’s no one to approve them. And FOI administration is amongst the areas to be hit.

One example of this is when someone requests access to a record that has been transferred to the Public Record Office of Northern Ireland (PRONI). If exemptions apply to the information concerned, according to s.66(2) of FOIA, it is up to the relevant Northern Ireland minister to decide who should be consulted in the department that transferred the records (as in, which other minister). Since there is no minister to decide (or indeed to consult) there is a problem. In a batch of decisions issued last month, the Information Commissioner wrestled with this conundrum and concluded that whilst the Northern Ireland department that is responsible for PRONI is clearly in breach of FOIA for not responding within 20 working days, the Commissioner cannot make the department do anything since they don’t have a minister. Those making requests for transferred information in Northern Ireland are effectively losing their rights because there is no minister.

It works the other way too. If Northern Ireland government departments want to withhold information relating to policy making, they are generally able to rely on s.35(1)(a), the exemption covering the formulation or development of government policy. However, if that or other exemptions don’t apply, they would want to rely on the exemption at s.36(2)(c), which only applies if the authority’s qualified person provides an opinion that disclosure would or would be likely to prejudice the effective conduct of public affairs. In Northern Ireland’s government departments, the qualified person is, as it is in Westminster departments, a minister. So they are currently unable to use the ‘safety net’ exemption in FOIA. How ironic that Northern Ireland’s government departments find themselves stuck for a backstop.

In practice of course, this is likely to impact on applicants in the form of considerable delays in responses to their requests.

It turns out that not having a minister is a bit of a problem for anyone who wants to make, or is tasked with answering, an FOI request.

References:

ICO decision FS50696780

ICO decision FS50696778

ICO decision FS50696776

 

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)

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.

The Exemption Index – FOI Section 36

FOI Man looks at the key features of the controversial Freedom of Information Act exemption covering the effective conduct of public affairs.

Summary

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.

Information affected

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

Recommended reading

FOI Man says…