Section 36 Exemption to FOI

A section 36 exemption to the Freedom of Information Act allows information to be withheld if it would prejudice to effective conduct of public affairs. It is named after the relevant section in the Act.

Contents

• What Does the Act Say?

• What Does This Mean?

  • Public authority

  • Qualified Person

  • Free and Frank Provision of Advice or Exchange of Views

  • Prejudice the Effective Conduct of Public Affairs

• Making A Decision on Applying Section 36

  • Getting the Qualified Person’s Opinion

  • Would or Would Be Likely To

• Applying the Public Interest Test

• Neither Confirm Nor Deny

• Conclusion

________________________________________________________________________________________________

________________________________________________________________________________________________

What Does the Act Say?

Section 36 is quite long but the core text reads:

“(1) This section applies to

(a) information which is held by a government department… 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…

(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.”

What Does This Mean?

Let’s break down this legal text and explore some of the key terms:

Public authority

The Act applies to data and information held by or on behalf of public authorities. The Act does not apply to the private sector, and only applies to charities in limited circumstance.

Qualified Person

The terms qualified person for a public authority is not defined in the Act. However, because the wider exemptions discusses ministers of the Crown the Information Commissioner interprets this to mean the Chief Executive or equivalent, or the organisation’s highest decision making body e.g. the Board.

Free and Frank Provision of Advice or Exchange of Views

People in public service must be able to discuss issues and share views freely. There is a risk that, if people’s contributions to discussions and decision making will always be disclosed under the Act people will be reluctant to speak openly. This is known as having a “chilling effect” on important discussions. The exemption is designed to give people a safe space to have important discussions and to make the right decisions for effective public services.

Prejudice the Effective Conduct of Public Affairs

This is wider than the free and frank exchange of views, and relates to a public authority’s ability to provide services or achieve its objectives.

For example, decisions on funding and staffing might be withheld under a section 36 exemption because it could inhibit an organisation’s ability to plan and implement service changes.

________________________________________________________________________________________________

________________________________________________________________________________________________

Making A Decision on Applying Section 36

A section 36 exemption is more complex than some other exemptions because there are a number of steps to go through to apply it successfully.

Getting the Qualified Person’s Opinion

The qualified person must be consulted. It is not an administrative nicety. That means the qualified person needs to see:

• the request

• all the information that has been requested

• any arguments for and against disclosure e.g. the effect disclosure might have

The decision they make must be a reasonable one. A reasonable opinion is one that any other person could read if presented with the same information. This is not a high bar, but the reason for the decision must be clear so that it survives challenge.

Would or Would Be Likely To

If there is a concern about the chilling effect disclosure would have, or any prejudice to the effective conduct of public affairs, these must be more than hypothetical.

That means there has to be a reasonable risk of the potential harm occurring. IT does not have to eb certain to happen, or even very likely to happen. However, the risk must be real and non-trivial.

Applying the Public Interest Test

A section 36 exemption is an example of a qualified or prejudice based exemption. That means in order to withhold the information the arguments against disclosure have to be weighed against the assumed public interest in disclosure.

That means you have to ensure the arguments against disclosure outweigh the arguments in favour. It is ultimately on that basis that the qualified person makes their decision.

• find out more about public interest exemptions here.

• learn more about the public interest test here.

Neither Confirm Nor Deny

If a decision is made to withhold requested information under section 36 then the requestor should get a decision notice explaining this and the reasons for it.

Sometimes revealing the existence of the requested information defeats the object of withholding it. Therefore in some circumstances, when refusing to disclose the information, you should neither confirm nor deny that it is held.

________________________________________________________________________________________________

________________________________________________________________________________________________

Conclusion

The Section 36 exemption stands as a cornerstone in the tapestry of information access, weaving threads of confidentiality into the fabric of responsible governance. As we navigate its intricacies, we find ourselves at the intersection of transparency and operational necessity, seeking a delicate equilibrium that serves the public interest.