Line to take - LTT17 - Investigation of the reasonable opinion of the qualified person

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  • FOI/EIR: FOI
  • Section/Regulation: s36
  • Issue: Investigation of the reasonable opinion of the qualified person
  • Source: Internal discussion, Information Tribunal
  • Details: Agreed by RT (08/09/2006) amendment agreed by GS (27/09/2007), Guardian & Brooke / BBC (8 January 2007), Mcintyre / MOD (4 February 2008), Home Office & MOJ (20 November 2008)
  • Related Lines to Take: LTT21, LTT35, LTT118
  • Related Documents: Awareness Guidance 25, EA/2006/0011 and EA/2006/0013 (Guardian & Brooke), EA/2007/0068 (Mcintyre), EA/2008/0006 (Home Office)
  • Contact: LA
  • Date: 03/02/2009
  • Policy Reference: LTT17
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Information can only be exempt by virtue of section 36 if, “in the reasonable opinion of a qualified person,” disclosure would or would be likely to lead to any of the adverse consequences identified in s.36 (2). In investigating cases involving s.36, case officers must:

  • Ascertain who is the qualified person/s for that particular authority
  • Establish that an opinion was given
  • Ascertain when the opinion was given
  • Consider whether the opinion given was reasonable in substance and reasonably arrived at

Further Information

N.B. This LTT should be read in conjunction with LTT35 & LTT118

1. Who is the qualified person?

Qualified persons may be listed in section 36(5) or may appear on the MoJ web site at

http://www.foi.qov.uk/guidance/exquide/sec36/annex-d.htm

The list provided at this link is useful, but it has to be taken into account that it hasn’t been updat ed for some time. The webpage itself now says that it is archived and is not being updat ed. If a public authority has a body or person authorised to act as the qualified person, and this does not appear in the Act or on the MOJ list, we may require confirmation that authorisation has been given. We would expect authorities to keep on file a record that authorisation has been given, so that this can be supplied to us in the event of any dispute.

The ability of the qualified person to determine whether information is exempt by virtue of section 36 cannot be delegated to another person. The reason for asking who gave the opinion in a section 36 case is to ensure that the decision was taken by the correct person. If the person who gives the opinion is not the qualified person, then information cannot be exempt. (but see also below and LTTs 35 and 118 for discussion about flaws in the process)

2. Was an opinion given?

There is no requirement in the Act for the qualified person to sign a certificate or to give an opinion in writing. The fact that there is no evidence of an opinion being given does not, therefore, prove that the exemption is not engaged. Although we may be content with an assurance that an opinion was given the “other matters” section of a DN should state that good practice is to keep a proper record (see also section below on Investigation). The question of whether the opinion was reasonably arrived at is dealt with below.

s36(7) provides that a certificate signed by the Speaker of the House of Commons or, in respect of the House of Lords, the Clerk of the Parliaments shall be conclusive evidence that disclosure would, or would be likely to have any of the effects mentioned in 36(2). Also according to section 2(3)(e), section 36 operates as an absolute exemption so far as it relates to information held by either the House of Commons or the House of Lords.

3. When was the opinion given?

In theory this should be a straightforward check to ensure that the qualified person’s opinion was obtained in advance of the request being refused under section 36 and prior to the commencement of the ICO investigation. In reality various complications may occur. See LTT118 in s36 for further discussion on this point.

It should also be noted that the extension to the 20 working day period for response in order to consider the public interest cannot be correctly claimed until the qualified person has given her or his opinion that information is exempt.

4. Was the opinion given reasonable in substance and reasonably arrived at?

Further information on the interpretation of reasonableness is available in LTT35 based on the Guardian & Brooke v The ICO and McIntyre v the ICO Information Tribunal decisions. Both of these cases set out further guidance in interpreting “reasonable opinion” and comment on the extent to which the opinion must be both reasonable in substance and reasonably arrived at.

LTT35 also notes the Tribunal’s comments in Guardian & Brooke on evidence and concludes that although it may not be possible to collect evidence on what might happen in the future, this does not mean, that the process of reaching a reasonable opinion should not be supported by evidence.

Investigation

In the McIntyre case the Tribunal commented (at para 47) that “We would recommend to the Commissioner that in future investigations for complaints where a s.36(2) exemption has been claimed that he should require to see more evidence in relation to the opinion given by the qualified person, such as civil servants’ submissions to ministers and their responses.”

In Home Office & Ministry of Justice v the information Commissioner the Tribunal commented on this issue again, saying that “The IC did not require to see submissions to ministers or the ministers’ responses but still came to this conclusion [that s36 was engaged] We have had the opportunity of seeing the submissions and are satisfied that the exemption is engaged. However we would observe, as the Tribunal did in Mcintyre v IC (EA/2007/0068), that the IC is unsafe to come to such a conclusion without seeing the submissions to ministers as otherwise the test established in Guardian Newspapers Ltd & Brooke v IC (EA/2006/000l & 113) that the opinion should be reasonable in substance and reasonably arrived at, will be difficult to consider.”

To investigate whether the opinion was reasonable case officers should establish what the qualified person had in front of them when making their decision. This should include establishing whether a record of the decision making was kept or a subsequent account was written up or is capable of being written up. Information a qualified person had in front of them when making a decision could include:

a. The information itself
b. A summary or description of the requested information
c. Information supporting a recommendation
d. Contrary arguments


It is important that wherever possible we view the information that the qualified person had in front of them as part of our assessment of whether or not the opinion given is reasonable. By viewing the information we can check that only relevant factors were taken into consideration and that the substance of the requested information is not such that the Qualified Person could not reach a reasonable opinion that the exemption was engaged (see also LTT35).

Assessing responses

In assessing responses to questions about section 36 by public authorities a case officer will need to make a judgment whether to accept the response of the public authority. The case officer will need to consider whether they now have enough information to decide that the opinion was reasonable. The information required will vary from case to case. As highlighted above it should be noted that not all decisions will be verified by evidence.

Older cases — with some older cases consideration must be given to the passage of time and the availability of relevant people involved. Some government departments have no problem providing the information we require whilst other departments have been reluctant to provide such information. In a situation where a public authority is reluctant (rather than unable) to provide information, case officers should

  • Consider the use of an Information Notice
  • Refer the public authority to the IT recommendation in Mcintyre that the ICO should require to see evidence in relation to the qualified person’s opinion, and
  • Emphasise to the public authority that reluctance to provide us with evidence to support the reasonableness of the opinion, may increase the likelihood of a conclusion that the opinion is not reasonable, or of our exercising our discretion not to consider a late claim of s36 (see also LTT118).

Decision Notice

The Decision Notice should explain what the IC has seen in the way of evidence, If it is necessary to refer to what the evidence says, care must be taken to ensure no exempt information is disclosed. The IC should then explain whether he is satisfied that the opinion was reasonable.

Where we have accepted a late claim or a late correction of flaws in relation to s36, then it may also be appropriate to comment on this in the “other matters” section of the Decision Notice (see also LTT118).

The public interest and section 36

In principle, there is no reason why the qualified person should not also carry out the public interest test. The important thing from our point of view is that we are satisfied that the test has been carried out and that it has not been assumed that, because the qualified person has stated that the exemption applies, information should not be disclosed.

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