Section 36 - Prejudice to the effective conduct of public affairs

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Latest updates - last updated 18 August 2023

18 August 2023 - We have added the Keeping internal consultations on FOI requests timely and transparent resource to Further reading.

3 January 2023 - Advice on clarifying whether an individual has been authorised to act as the qualified person has been amended, see ‘Identifying the qualified person’. 

New examples have been introduced to illustrate that the exemption cannot be claimed if the qualified person’s opinion has not been obtained see ‘Qualified person’s opinion is needed to engage the exemption’. 

Under ‘What is a reasonable opinion?’, an Upper Tribunal decision clarifies that the focus should be on whether the opinion is reasonable in substance. A first-tier tribunal decision, demonstrates that the qualified person’s opinion is not required where the request seeks ‘Statistical information’. 

A fuller explanation of the ‘Chilling effect’ and its limitations is provided, supported by examples. 

In ‘How should we apply the public interest test?’  examples have been introduced to clarify the importance of giving weight to the qualified person’s opinion. 

Under ‘How should we record the qualified person’s opinion?’ the importance of recording the reasons behind the opinion is demonstrated in an Upper Tribunal decision which dismissed mere assertions by the public authority that the prejudice would occur. The value in maintaining a documentary record of the opinion is set out in EA/2009/0081.

About this detailed guidance

This guidance discusses section 36 of FOIA – the prejudice to the conduct of public affairs exemption – in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you apply section 36 in practice.

In detail

• What does FOIA say?
• Who is the qualified person?
  • Identifying the qualified person
  • Qualified person’s opinion is needed to engage the exemption   
• What is a reasonable opinion?
  • Reasonableness
  • Would, or would be likely
  • Blanket rulings
  • Information held by Parliament
  • Statistical information
• What does the exemption protect?
  • Collective responsibility
  • Northern Ireland Executive and Welsh Government 
  • Free and frank provision of advice or exchange of views
  • Chilling effect arguments
  • Other prejudice to the effective conduct of public affairs
  • Safe space arguments 
  • Record keeping arguments
• How should we apply the “neither confirm nor deny” provision?
• How should we apply the public interest test?
• How should we conduct internal reviews?
• How should we record the opinion?
  • Recording the public interest test
• What else should we consider?
  • Interaction with section 35
  • Historical records (the 20-year rule)
  • Environmental information
• Further reading

What does FOIA say?

Section 36(1) – (4) states:

36.—(1) This section applies to—

(a) information which is held by a government department or by the Welsh Government and is not exempt information by virtue of section 35, and

(b) information which is held by any other public authority.

(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

(a) would, or would be likely to, prejudice —

(i) the maintenance of the convention of the collective responsibility of Ministers of the Crown, or

(ii) the work of the Executive Committee of the Northern Ireland Assembly, or

(iii) the work of the Cabinet of the Welsh Government.

(b) would, or would be likely to, inhibit—

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation, or

(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

(3) The duty to confirm or deny does not arise in relation to information to which this section applies (or would apply if held by the public authority) if, or to the extent that, in the reasonable opinion of a qualified person, compliance with section 1(1)(a) would, or would be likely to, have any of the effects mentioned in subsection (2).

(4) In relation to statistical information, subsections (2) and (3) shall have effect with the omission of the words “in the reasonable opinion of a qualified person”.

Section 36(1)(a) means that where information held by government departments (which includes a Northern Ireland department) or the Welsh Government is exempt under section 35 of FOIA (to do with the formulation of government policy), section 36 cannot apply to that information. This is the case even if section 35 is engaged in relation to any particular information, but the public interest test under section 35 is in favour of disclosure. Therefore, if you are either a government department or part of the Welsh Government, you should first check that the information in question does not engage section 35.

Who is the qualified person?

Identifying the qualified person

Section 36 requires that, other than for statistical information, your qualified person must give their reasonable opinion that the exemption is engaged. Therefore, in order to use section 36, you must establish who your qualified person is.

Section 36(5) explains what is meant by the ‘qualified person’. Subsections (a) to (n) define who the qualified person is for a number of specific authorities. This list has been amended since FOIA was first passed, as public authorities have changed, so you should consult the latest version. 

Many public authorities will fall under section 36(5)(o). In this case, the qualified person is a Minister of the Crown or a person authorised by a Minister of the Crown. A Minister may authorise the public authority itself or any officer or employee of the authority to be the qualified person.

If the qualified person is the public authority itself rather than a specific post, this means the authority’s highest decision-making body.

If you are a public authority falling within section 36(5)(o) and are uncertain who is your authorised qualified person, you can get advice from the FOI team in your central government parent department.

As shown in the example above, you cannot decide for yourself who the qualified person is; nor can the qualified person delegate the authority to someone else if the qualified person is available to give an opinion. However, situations may arise in which the qualified person cannot give their opinion because they are absent or not available. For example, they may be on leave or on sickness absence, or there may be no-one in that post at the relevant time. In those cases, section 36 cannot be relied on unless someone else has been formally designated to act in that capacity. This could be done through a scheme of delegation which specifies that someone else can exercise that post holder’s powers and functions whenever they are absent, or those powers and functions could be formally delegated to the alternative person as the need arises. Provided there is a formal delegation of some sort, the alternative person is truly ‘standing in the shoes’ of the absent post holder so they can act as the qualified person.

This is different from a situation where the post holder who is the qualified person is absent and someone else is simply covering part of their work, such as attending meetings or replying to correspondence but without having the post holder’s powers and functions formally delegated to them. In that situation, the other person is not the qualified person.

While it is the qualified person who must give the required opinion, someone else in your authority, eg your freedom of information officer, may carry out the preparatory work leading up to the decision, for example assembling the evidence and summarising the arguments. This form for recording the opinion of the qualified person may help you when carrying out such preparatory work.

Qualified person’s opinion is needed to engage the exemption

The qualified person is required to give a reasonable opinion about the likelihood of prejudice or inhibition under section 36(2). The qualified person’s opinion is crucial to engage the exemption. If the opinion is not given by the appropriate person, the exemption cannot apply.

What is a reasonable opinion?

Reasonableness

To engage section 36, the qualified person must give an opinion that the prejudice or inhibition specified in section 36(2)(a)-(c) would or would be likely to occur. But that in itself is not sufficient: the opinion must be reasonable.

In this context an opinion either is or is not reasonable. In deciding whether an opinion is reasonable, the plain meaning of that word should be used, rather than defining it in terms derived from other areas of law.
The most relevant definition of ‘reasonable’ in the Shorter Oxford English Dictionary is: “in accordance with reason; not irrational or absurd”. Therefore, if it is an opinion that a reasonable person could hold – then it is reasonable.

This is not the same as saying that it is the only reasonable opinion that could be held on the subject. The qualified person’s opinion does not become unreasonable simply because other people may have come to a different (and equally reasonable) conclusion. It does not even have to be the most reasonable opinion that could be held; it only has to be a reasonable opinion. It is only unreasonable if it is an opinion that no reasonable person in the qualified person’s position could hold.

The Information Tribunal in Guardian Newspapers Ltd and Brooke v Information Commissioner and British Broadcasting Corporation (EA/2006/0011 and EA/2006/0013, 8 January 2007) said at paragraph 60:

“We do not favour substituting for the phrase ‘reasonable opinion’ some different explanatory phrase, such as ‘an opinion within the range of reasonable opinions’. The present context is not like the valuation of a building or other asset, where a range of reasonable values may be given by competent valuers acting carefully. The qualified person must take a view on whether there either is or is not the requisite degree of likelihood of inhibition.”

This approach was later approved by the Upper Tribunal in Information Commissioner v Malnick and the Advisory Committee on Business Appointments [2018] UKUT 72 (AAC) GIA/447/2017, 1 March 2018, giving it the binding status of an Upper Tribunal decision.

Where the ICO is considering a complaint about information withheld under section 36, we will consider all relevant factors to assess whether the opinion was reasonable. These may include the following:

Whether the prejudice relates to the specific subsection of section 36(2) that is being claimed. If the prejudice or inhibition envisaged is not related to the specific subsection, the opinion is unlikely to be reasonable.

The nature of the information and the timing of the request; for example, whether the request concerns an important ongoing issue on which there needs to be a free and frank exchange of views or provision of advice.

The qualified person’s knowledge of or involvement in the issue.

It is the reasonableness of the substantive opinion that should be considered, not the reasonableness of the procedure adopted when reaching that opinion. This was confirmed by the Upper Tribunal in Malnick which stated at paragraph 56 that,

“… we conclude that “reasonable” in section 36(2) means substantively reasonable and not procedurally reasonable”.

However, the submission made to support the opinion may be relevant to the ICO’s assessment of whether it is reasonable. Therefore, it is in your interest to provide all the evidence and arguments that led to the opinion in order to show that it was reasonable. If the qualified person makes an assertion that appears on the face of it to be an unreasonable opinion, we are likely to find the exemption is not engaged. But if you have supported it by argument and evidence that relevant factors have been taken into account, it may be evident that it is at least a reasonable opinion. Section 36(2) is expressed in broad terms, and for the opinion to be reasonable, it must be clear as to precisely how the prejudice or inhibition may arise.

Would, or would be likely

It is important to remember that the qualified person’s opinion is about whether the prejudice or inhibition would or would be likely to occur. These are two different things. The opinion should state clearly which level of prejudice the qualified person thinks will occur.

‘Would prejudice’ means that it is more likely than not (ie a more than 50% chance) that prejudice would occur. ‘Would be likely’ is a lower standard; it means that the chance of prejudice must still be significant and weighty, and certainly more than hypothetical or remote, but it does not have to be more likely than not that it would occur. More information about this is in our guidance on the prejudice test.

The choice is important as there may be cases in which it is reasonable to think that there is a real chance of prejudice occurring (would be likely), but not reasonable to think that the risk is more than 50% (would). The choice also affects the balance of factors in the public interest test.

Blanket rulings

Section 36 depends crucially on the qualified person’s exercise of discretion in reaching their opinion. This means they must consider the circumstances of the particular case before forming an opinion. We recognise you may have developed a general approach to releasing or withholding certain types of information, but this must not limit the qualified person’s discretion. An opinion formed purely on the basis of a ‘blanket ruling’ may not be reasonable if it does not take account of the circumstances at the time of the request. The qualified person should consider the facts in each case.

Information held by Parliament

The engagement of s36 depends on the qualified persons’ opinion being reasonable. However, under s36(7), when information is held by the House of Commons or House of Lords, a certificate signed by the Speaker of the House of Commons or the Clerk of the Parliaments, certifying that in their reasonable opinion disclosure would or would be likely to have the effects in section 36(2), provides conclusive evidence of that fact and no further consideration is required.

Furthermore, under section 2(3)(e), where section 36 is engaged regarding information held by the House of Commons or House of Lords, the exemption is absolute. This means that where there is a certificate as described above, the information is exempt from disclosure and there is no public interest test.

Statistical information

Under section 36(4), you do not need a qualified person’s opinion to withhold statistical under section 36(2), but you must still explain to the requestor why section 36(2) applies in line with section 17(1),

Example

In ICO decision notice FS50297517, Hertfordshire County Council withheld statistics on racial incidents in schools in North Hertfordshire with reference to section 36(2)(c). As the information was statistical, under section 36(4) they did not need to obtain a qualified person’s opinion. In this case, the ICO found that the information was correctly withheld.

The term ‘statistical information’ includes statistics, ie factual information presented as figures. However, it has a wider meaning than just statistics and includes not just the raw data that may be used for statistical analysis but the mathematical model or methodology used to analyse the data and the product or outcome of that analysis. There is further discussion of statistical information in our separate guidance on section 35, which relates to the formulation of government policy.

What does the exemption protect?

Collective responsibility

Section 36(2)(a)(i) covers information whose disclosure would or would be likely to prejudice collective responsibility:

36.—(2) Information to which this section applies is exempt information if in the reasonable opinion of a qualified person disclosure of the information under this Act—

(a) would, or would be likely to, prejudice—

(i) the maintenance of the convention of the collective responsibility of Ministers of the Crown

Section 36 cannot apply to information that is exempt under section 35. Section 36(1)(a) makes this clear. In many cases, the issue of collective responsibility will arise in the context of information held by government departments which relates to the formulation or development of government policy or is contained in Ministerial communications. Such information would therefore engage section 35 rather than section 36. However, section 36(2)(a)(i) could apply to any other information which would or would be likely to prejudice collective responsibility if disclosed.

As section 35 can only be claimed by government departments, any other public authority which has concerns that disclosing information would, or would be likely to prejudice collective responsibility, would need to consider section 36(2)(a)(i). This is regardless of whether it related to government policy.

Collective responsibility is the longstanding convention that all ministers are bound by Cabinet decisions and carry joint responsibility for all government policy and decisions. It is a central feature of our constitutional system of government. Ministers may express their own views freely and frankly in Cabinet and committees and in private, but once a decision is made they are all bound to uphold and promote that agreed position to Parliament and the public. This principle is set out at paragraph 2.1 of the Ministerial Code (May 2022):

“The principle of collective responsibility requires that ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained.”

The convention of collective responsibility incorporates elements of safe space and chilling effect, discussed further below. However, there is an additional unique element: that ministers need to present a united front in defending and promoting agreed positions. If disclosure would undermine this united front by revealing details of diverging views, this would undermine ongoing government unity and effectiveness.

Information that identifies the position taken by Ministers may sometimes enter the public domain by means other than FOIA, for example details revealed in a published memoir.

However, under section 36(2)(a)(i), the issue for the qualified person to consider is whether disclosing the requested information under FOIA would or would be likely to prejudice collective responsibility. Each case will need to be considered according to its own circumstances. Furthermore, although collective responsibility is an important constitutional principle, the exemption is not absolute. Even if prejudice would or would be likely to occur, it is still necessary for you to carry out the public interest test objectively in order to decide whether the information should be disclosed. Nonetheless, the importance of maintaining collective responsibility is likely to carry significant weight in the public interest test.

Northern Ireland Executive and Welsh Government

Section 36(2)(a)(ii) concerns prejudice to the work of the Executive Committee of the Northern Ireland Assembly, and section 36(2)(a)(iii) concerns prejudice to the work of the Cabinet of the Welsh Government:

36.—(2) Information to which this section applies is exempt information if in the reasonable opinion of a qualified person disclosure of the information under this Act—

(a) would, or would be likely to, prejudice—

(ii) the work of the Executive Committee of the Northern Ireland Assembly, or

(iii) the work of the Cabinet of the Welsh Government.

The Ministerial Code for the Welsh Government states that the Cabinet operates on the basis of collective responsibility. The Ministerial Code for the Northern Ireland Executive does not refer to a convention of collective responsibility. However, it should be noted that these subsections are in any case expressed more broadly than subsection 36(2)(a)(i); they refer to ‘the work’ of these bodies. The prejudice envisaged could therefore be more generally to the activities of these two bodies and their ability to function, rather than to the specific convention of collective responsibility.

Free and frank provision of advice or exchange of views

Section 36(2)(b) states:

36.—(2) Information to which this section applies is exempt information if in the reasonable opinion of a qualified person disclosure of the information under this Act—

(b) would, or would be likely to, inhibit—

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation

Information may be exempt under section 36(2)(b)(i) or (ii) if its disclosure would, or would be likely to, inhibit the ability of your staff and others to express themselves openly, honestly and completely, or to explore extreme options, when providing advice or giving their views as part of the process of deliberation. The rationale for this is that inhibiting the provision of advice or the exchange of views may impair the quality of decision-making.

You may claim either or both of these exemptions, but you need to be clear about which of them the qualified person’s opinion relates to. If it is not evident how the provision of advice or the exchange of views would be inhibited, it may be harder for you to justify that the opinion was a reasonable one.

Note that these exemptions are about the processes that may be inhibited, rather than what is in the information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. To engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.

The terminology used in these subsections is not defined in FOIA, but the key terms can be understood as follows:

• ‘Inhibit’ means to restrain, decrease or suppress the freedom with which opinions or options are expressed.
• Examples of ‘advice’ include recommendations made by junior staff to more senior staff, professional advice tendered by professionally qualified employees, advice received from external sources, or advice supplied to external sources. However, an exchange of data or purely factual information would not in itself constitute the provision of advice or, for that matter, the exchange of views.
• The ‘exchange of views’ must be as part of a process of deliberation.
• ‘Deliberation’ refers to the public authority’s evaluation of competing arguments or considerations in order to make a decision.

Chilling effect arguments

Arguments under s36(2)(b)(i) and (ii) are usually based on the concept of a ‘chilling effect’. The chilling effect argument is that disclosure of discussions would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage the quality of advice and deliberation and lead to poorer decision-making.

Tribunals are generally sceptical of such arguments. In Davies v Information Commissioner and the Cabinet Office (GIA) [2019] UKUT 185 (AAC), 11 June 2019 the Upper Tribunal stated at paragraph 25 that,
There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of affairs are to be treated with some caution.

There are two main reasons for such caution. Firstly, since FOIA was introduced in 2005, public officials now recognise that it is not possible to guarantee the confidentiality of their advice or deliberations. Secondly, civil servants and other public officials are expected to be impartial and robust when giving advice, and not be easily deterred from expressing their views by the possibility of future disclosure.

The possibility of future disclosure could actually lead to better quality advice. Where lobbyists have been involved in the discussions, then they are even less likely to be inhibited in their contributions by the possibility of disclosure as they are trying to further their own agenda by influencing your public authority.

Although there are a number of restraints on the chilling effect, such arguments cannot be dismissed out of hand. The real issue is the weight they attract.

Chilling effect arguments operate at various levels. They are likely to be strongest if the issue in question is still live.

Arguments about the effect on closely related live issues may also be relevant. However, once the decision in question is finalised, chilling effect arguments become more and more speculative as time passes. It will be more difficult to make reasonable arguments about a generalised chilling effect on all future discussions – not least because each case has to be dealt with in light of its own particular circumstances. Therefore a decision to disclose information in one case should not establish an expectation that advice and views will automatically be disclosed in response to other requests.

When considering the circumstances of a request you should take account not only of the timing of the request and whether the issue is still live, but also the actual content and sensitivity of the information in question.

If it is reasonable to think that inhibition under s36(2)(b)(i) or (ii) would or would be likely to occur, you should still consider how much weight to attach to the alleged chilling effect when carrying out the public interest test. 

If the ICO receives a complaint, it is important that you fully explain why the chilling effect is relevant. This may include explaining the stage that the relevant advice process or decision-making process has reached and how closely it relates to other ongoing or future processes that you believe may also be inhibited. The onus is on you to make your case. Without such explanations, we will not be able to assess the weight that should be given to such arguments when considering either the reasonableness of the qualified person’s opinion or the public interest in preventing those consequences.

Other prejudice to the effective conduct of public affairs

Section 36(2)(c) states:

36.—(2) Information to which this section applies is exempt information if in the reasonable opinion of a qualified person disclosure of the information under this Act—

(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

Prejudice to the effective conduct of public affairs could refer to an adverse effect on your ability to offer an effective public service or to meet your wider objectives or purpose, but the effect does not have to be on your authority; it could be an effect on other bodies or the wider public sector. It may also refer to the disruptive effects of disclosure, for example the diversion of resources in managing the effect of disclosure.

Section 36(2)(c) is concerned with the effects of making the information public. However, it does not relate, for example, to the internal effect on the public authority of collating information that has been requested or of making decisions on redaction.   

In McIntyre v Information Commissioner and the Ministry of Defence (EA/2007/0068, 4 February 2008), the Information Tribunal said at paragraph 25:

“We take a similar view to the Commissioner that this category of exemption is intended to apply to those cases where it would be necessary in the interests of good government to withhold information, but which are not covered by another specific exemption, and where the disclosure would prejudice the public authority’s ability to offer an effective public service or to meet its wider objectives or purposes due to the disruption caused by the disclosure or the diversion of resources in managing the impact of disclosure.”

The Information Tribunal here took the view that section 36(2)(c) is intended to apply to cases not covered by another specific exemption. So, if section 36(2)(c) is used alongside another exemption, the prejudice envisaged must be different to that covered by the other exemption. Furthermore, the fact that section 36(2)(c) uses the phrase “otherwise prejudice” means that it relates to prejudice not covered by section 36(2)(a) or (b). This means that information may be exempt under both 36(2)(b) and (c) but the prejudice claimed under (c) must be different to that claimed under (b). The Information Tribunal made this point in Evans v Information Commissioner and the Ministry of Defence (EA/2006/0064, 26 October 2007); they said, at paragraph 53, in relation to a claim of section 36(2)(c):

“The principle arguments in favour of this exemption advanced by the MoD and IC were similar to those put forward for section 36(2)(b)(i): that those attending such meetings would be inhibited from expressing themselves freely and frankly if there were a real possibility of disclosure under the Act; and likewise for those who recorded the meeting. However, if the same arguments are to be advanced, then the prejudice feared is not ‘otherwise’. Some prejudice other than that to the free and frank expression of advice (or views, as far as section 36(2)(b)(ii) is concerned) has to be shown for section 36(2)(c) to be engaged.”

Safe space arguments

You may argue that you need a ‘safe space’ to develop ideas, debate live issues, and reach decisions away from external interference and distraction.

Traditionally, safe space arguments relate to internal discussions but public authorities do sometimes invite external organisations or individuals to participate in their decision-making process (eg consultants, advisors, lobbyists, interest groups). Safe space arguments can still apply where external contributors have been involved, as long as those discussions have not been opened up for general external comment. However, this argument will generally carry less weight than if the process only involved internal contributors.

The safe space argument is more commonly applied to the development or formulation of government policy, and as such it relates to section 35. However, if section 35 is not relevant, either because you are not one of the authorities that are able to rely on that exemption or the information does not relate to government policy, there may be a similar need for a safe space in which to develop ideas or make decisions. If the disclosure of information would or would be likely to prejudice this, there may be an argument for engaging section 36(2)(c).

The safe space argument could also apply to section 36(2)(b) if premature public or media involvement would prevent or hinder the free and frank exchange of views or provision of advice. On the other hand, if it is argued that disclosing information would interfere with or distract decision makers from the process in some other way, or would prejudice or undermine the decision itself rather than the frankness of the discussion specifically, then this argument only relates to section 36(2)(c).

This need for a safe space will be strongest when the issue is still live. Once you have made a decision, a safe space for deliberation will no longer be needed. If it was a major decision, there might still be a need for a safe space to properly promote, explain and defend its key points without getting unduly side-tracked. However, this can only last for a short time and you would have to explain clearly why it was still needed at the time of the request on the facts of each case. The timing of the request will therefore be an important factor.

Record keeping arguments

It is sometimes argued that concerns about disclosure lead to public authorities keeping less detailed or even inadequate records of discussions and that this would affect the quality of decision-making and hence engage section 36(2)(c).

However, arguments that disclosure will lead to public authorities keeping less detailed records of discussions in future, and that this will harm internal deliberation in future, will carry little if any weight. The Information Tribunal in Guardian Newspapers Ltd and Brooke v Information Commissioner & BBC (EA/2006/0011 and EA/2006/0013, 8 January 2007) said at paragraph 107:

“For purposes of effective administration a responsible public body ought to keep suitable minutes of important meetings, whether or not the minutes may be disclosed to the public at a future date.”

You are expected to keep adequate records for your own purposes, and to conform to the section 46 Code of Practice on the management of records. If your authority endorses or permits a loss of detail in the records you keep, it will be difficult to argue that the loss of detail is harmful. However, some record keeping arguments may actually be chilling effect arguments made in a slightly different way (ie that disclosure would result in less detailed advice, which would then inevitably result in less detailed records of that advice). These chilling effect arguments may be relevant to engaging section 36(2)(b), as discussed above.

How should we apply the “neither confirm nor deny” provision?

Section 36(3) envisages circumstances in which it is not appropriate for you to confirm or deny whether you hold the requested information, which is normally the duty under s1(1)(a) of FOIA. In such cases the qualified person must still give their reasonable opinion that to confirm or deny that the information is held would itself have the effects listed in s36(2). Having obtained this opinion, you must still carry out a public interest test to decide whether the public interest in not confirming or denying outweighs the public interest in complying with s1(1)(a). The refusal notice should indicate which subsection of s36 is engaged, without disclosing whether the information is held or not.

For more information see the guidance on the duty to confirm or deny provisions.

How should we apply the public interest test?

Section 36 is a qualified exemption, which means that, even when the qualified person has given their opinion that the exemption is engaged, you must still carry out a public interest test. The purpose of the public interest test is to decide whether the public interest in maintaining the exemption outweighs the public interest in disclosure. If it does not, the information must be released.

The public interest test is separate from the qualified person’s opinion. The qualified person need not carry out the public interest test themselves, but may do so. It is possible for other colleagues from your authority to carry out the public interest test once they have received the qualified person’s opinion. When doing so, they should be aware that the fact that the exemption is engaged by the qualified person’s opinion does not automatically mean that the information should be withheld. There should be an objective consideration of the public interest, which includes taking full account of the arguments in favour of disclosure.

The qualified person’s opinion will affect the consideration of the arguments for withholding the information, and appropriate weight should be given to their opinion that the prejudice or inhibition would or would be likely to occur. As observed in the leading judgement in Department for Works and Pensions v Information Commissioner & Zola [2016] EWCA Civ 758:

“It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of the competing public interests under section 36.” (paragraph 55)

And the Upper Tribunal in Malnick found (at paragraph 29) that the qualified person, being someone who holds a senior role within their organisation, should have the requisite knowledge of how their organisation works and the consequences of any disclosure. Therefore their opinion should be given a measure of respect.

The weight attached to the qualified person’s opinion will be greater if they have decided that disclosure ‘would’ prejudice or inhibit than if they have said disclosure would only be likely to prejudice or inhibit. Of course, the qualified person’s opinion on this point must be reasonable for the exemption to be engaged.

In considering a complaint regarding section 36, if the ICO finds that the opinion was reasonable, the weight of that opinion in the public interest test will then be considered. This means we accept that a reasonable opinion has been expressed that prejudice or inhibition would, or would be likely, to occur but we will go on to consider the severity, extent and frequency of that prejudice or inhibition in forming our own assessment of whether the public interest test favours disclosure.

The Information Tribunal in Guardian Newspapers Ltd and Brooke v Information Commissioner & BBC (EA/2006/0011 and EA/2006/0013, 8 January 2007) said at paragraph 92:

“In our judgment the right approach, consistent with the language and scheme of the Act is this: the Commissioner, having accepted the reasonableness of the qualified person’s opinion that disclosure of the information would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation, must give weight to that opinion as an important piece of evidence in his assessment of the balance of public interest. However, in order to form the balancing judgment required by s2(2)(b), the Commissioner is entitled, and will need, to form his own view on the severity, extent and frequency with which inhibition of the free and frank exchange of views for the purposes of deliberation will or may occur.”

Under section 10(3) you may, if necessary, extend the 20 day time limit for responding to a request in order to fully consider the balance of public interest. But, under section 17(1), you must still inform the requestor within 20 working days that section 36 is engaged and why. Since section 36 can be engaged only when the qualified person has given their opinion, this means you should obtain that opinion within 20 working days and before extending the time limit to consider the public interest test. Therefore, you should obtain their opinion in good time to carry out the public interest test.

Finally, although section 36 is qualified regarding information held by most public authorities, it is not subject to the public interest test as regards information held by the House of Commons or House of Lords.

How should we conduct internal reviews?

You should offer an internal review to applicants who are dissatisfied with a decision to withhold information they have requested. An internal review presents an opportunity for you to reconsider how you dealt with the request.

In the case of section 36 we expect that your qualified person would take the opportunity to consider their reasonable opinion again, taking account of any comments from the requester. It should always be possible for you to review the public interest arguments.

If section 36 has been applied and there have been flaws in the process leading to the opinion of the qualified person, the internal review provides an opportunity to correct them. Here are some examples:

• If the qualified person’s opinion was not given within 20 days, section 36 can still be engaged if the qualified person’s opinion is obtained during the internal review.
• If there was in fact no qualified person authorised at the time of the request but they are authorised before the completion of the internal review, they can give their opinion then and engage the exemption.
• If you have not previously considered section 36, you can do this during the internal review, provided that you obtain the qualified person’s opinion and carry out the public interest test.

How should we record the opinion?

To help the qualified person form a reasonable opinion, you should give them all relevant material, eg the information itself or a description of it, together with arguments and any evidence on what the effects of disclosure would be. It may be difficult for the qualified person to reach a reasonable opinion if they are not aware of the nature of the information and the relevant factors they need to take into account. It is also important to be clear what information the opinion relates to.

You should record the opinion and the evidence used to come to this opinion. Should the requester make a complaint, this evidence will support the ICO in assessing whether the substantive opinion was reasonable (rather than assessing the quality of the reasoning process). Without such evidence, it may be harder for the ICO to find the qualified persons opinion was reasonable.

The Tribunal also emphasised the importance of documenting the opinion in Chief Constable of Surrey Police v Information Commissioner (EA/2009/0081, 8 July 2010),

“…ideally it is critical if not at least best practice for the public authority to maintain a documentary record clearly and unequivocally affecting the opinion of a qualified person referring specifically to the particular exemption considered and relied on and ideally showing how that opinion was reached. If the Commissioner is to second guess the qualified person then those reasons are self evidently very important...” (paragraph 54)

You should record who gave the opinion, their status as qualified person and the dates when the opinion was sought and given. You could record this information on this form: Record of the qualified person’s opinion. While there is no statutory requirement for you to use the form, it can help you to record the minimum level of information which the ICO would expect to see should a requester complain.

Ideally, we would also expect to see a copy of the submission you made to the qualified person detailing the information in question, setting out the factors they should take into account and stating the reasons why disclosure would or would be likely to have the specific prejudicial or inhibitory effect. You should also provide a record of the factors the qualified person took into account, the weight they attached to them, and the opinion they gave.

If your discussions with the qualified person are oral rather than in writing, we expect you to keep a full contemporary record of the discussion and the decision. The Record of the qualified person’s opinion will help to provide a full account of the submissions provided to the qualified person and the factors they considered.

If there is not even a record taken at the time of the discussion, then as a minimum we would accept a signed statement from the qualified person recording their opinion. Again, the Record of the qualified person’s opinion can be used to retrospectively give the minimum information we need to assess whether the qualified person’s opinion was reasonable.

The onus is on you to demonstrate that the opinion is reasonable. The more complete the record of the basis of that opinion, the better we’ll be able to assess its reasonableness.

Recording the public interest test

Under section 17(3) you must explain to the requester why the balance of the public interest test favours withholding the information. In addition to the record of the qualified person’s opinion, you should therefore have a record of the factors taken into account in the public interest test and the weight given to them. You can then refer to these in any internal review and provide them to the ICO if there is a complaint.

You should record the public interest factors in favour of maintaining the exemption and the factors in favour of disclosure. You should then explain how you have weighed one against the other to conclude that the factors in favour of maintaining the exemption outweigh those in favour of disclosure. See our guidance on The public interest test for further details.

What else should we consider?

Interaction with section 35

If any part of section 35 is engaged, section 36 cannot apply. If you are a government department or part of the Welsh Government, you will therefore need to consider section 35 before applying section 36. See our guidance on section 35 for more information.

Historical records (the 20-year rule)

Section 63 says section 36 cannot apply to historical records. In simple terms, this originally meant that the exemption expired after 30 years. It could not cover any information contained in a file more than 30 years old.

This 30 year time limit has now been amended to 20 years by the Constitutional Reform and Governance Act 2010. This reduction is being phased in gradually over 10 years from 2013 onwards until it reaches 20 years by 2023. Details are set out in The Freedom of Information (Definition of Historical Records) (Transitional and Saving Provisions Order 2012) (SI 2012/3029).

However, note that for sections 36(2)(a)(ii) and (c) relating to prejudice to public affairs in Northern Ireland, the time limit remains 30 years.

Environmental information

If the information is environmental, this guidance is not relevant and you will instead need to consider disclosure under the Environmental Information Regulations 2004 (EIR). The most relevant EIR exceptions are likely to be regulation 12(4)(d) (material in the course of completion, unfinished documents and incomplete data) and regulation 12(4)(e) (internal communications).

Additional guidance is available on our guidance pages if you need further information on the public interest test, other FOIA exemptions, or the EIR.