Tag Archive for qualified person

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.