Line to take - LTT35 - Interpretation of 'reasonable opinion'

• FOI/EIR: FOI
• Section/Regulation: s36
• Issue: Interpretation of ‘reasonable opinion’
• Source: Information Tribunal
• Details: Guardian & Brooke / BBC (8 January 2007); Mcintyre / MOD (4 February 2008)
• Related Lines to Take: LTT17, LTT36, LTT118
• Related Documents: EA/2006/0011 and EA/2006/0013 (Guardian & Brooke), Awareness Guidance 25, EA/2007/0068 (Mcintyre)
• Contact: LA / LS
• Date: 20/11/2009
• Policy Reference: LTT35
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

A ‘reasonable opinion’ for the purposes of s36 will normally be one which is both objectively reasonable and reasonably arrived at.

However, an opinion which is arrived at via a flawed process may still be accepted as a reasonable opinion if:

• It is overridingly reasonable, in substance, or
• flaws in the process have been corrected within a reasonable time period

Further Information

This LTT should be read in conjunction with LTT17 & LTT118

Guardian & Brooke

In the case of Guardian & Brooke v The Information Commissioner & the BBC, the Information Tribunal considered the sense in which the reasonable person’s opinion under s36 is required to be reasonable.

It concluded that, “in order to satisfy the sub-section the opinion must be both reasonable in substance and reasonably arrived at.” (para 64)

Regarding the first point, the Tribunal stated that, “we have no doubt that in order to satisfy the statutory wording the substance of the opinion must be objectively reasonable” (para 60). It rejected the suggestion that in order to be reasonable, an opinion need only be ‘an opinion within a range of reasonable opinions’, but acknowledged that, “on such matters there may (depending on the facts) be room for conflicting opinions, both of which are reasonable.” (para 60)

In considering the second point, it recognised that the wording of the sub-section suggested that nothing more is required of the qualified person’s opinion than it be reasonable. On this reading, how the opinion was reached is irrelevant.

The Tribunal did not accept this interpretation, asking, “can it really be said that the intention of Parliament was that an opinion reached, for example, by the toss of a coin, or on the basis of unreasoned prejudice, or without consideration of relevant matters, could qualify as “the reasonable opinion of a qualified person” under s36 merely because the conclusion happened to be objectively reasonable?” (para 63).

It proposed that the provision that s36 is only engaged when the qualified person is of a reasonable opinion is a protection, which, “relies on the good faith and proper exercise of judgement of that person.” (para 64) It argued that this protection would be reduced if it the qualified person wasn’t required by law to give proper consideration to the formation of the opinion and therefore concluded that the qualified person should take into account relevant matters and ignore irrelevant matters.

It further noted that if the process were not taken into account, the reasonableness of an opinion would very often be basically unchallengeable, because, by definition, the opinion is a judgement on what might happen in the future.

The Tribunal did not accept (as was claimed by the ICO) that the reasonable opinion had to be verified by evidence, in the sense that it is not possible to prove that something might happen in the future. It stated that materials which may assist in the making of a judgement will vary from case to case, and direct evidence of the future is simply not available - conclusions about the future are necessarily hypothetical and can only be derived by inference from the present or past.

This does not mean, however, that the process of reaching a reasonable opinion should not be supported by evidence. (see also LTT17 on the investigation of the reasonable opinion of a qualified person)

In this particular case, the information requested was minutes of a meetinq attended by the BBC’s Board of Governors. The Board of Governors is also the ‘reasonable person,’ and the Tribunal noted that there was a substantial overlap between those present at the meeting in question and those forming the reasonable opinion.

They also noted that the Act “recognises the possibility that [...] if certain deliberations of public officials are to be opened up to public scrutiny, there could be a resulting deterioration in the quality of decision-making.” The Tribunal therefore concluded that it was difficult to say that the Governors’ view was objectively unreasonable.

The Tribunal expressed some reservations about the quality of the process by which the Board of Governors formed its opinion as the ‘qualified person’ because the opinion was based only on assertion, rather than an explicit consideration of the likely impact of disclosure of the minutes on future deliberation. However, because it considered that a lack of evidence could not invalidate an otherwise reasonable opinion, it decided to accept the Commissioner’s conclusion that the Board’s opinion was reasonable for the purposes of s36(2).

Mcintyre

Whilst in Guardian & Brooke the Tribunal accepted that a lack of evidence [of the process of arriving at a reasonable opinion] could not invalidate an otherwise reasonable opinion, in the case of Mcintyre vs The Information Commissioner and the Ministry of Defence it went a little further, and found that an opinion that was “overridingly reasonable in substance” might not be invalidated by a flawed process.

It commented (at paragraph 31) that “We are prepared to adopt the test in Guardian and Brooke but subject to two caveats. Firstly where the opinion is overridingly reasonable in substance then even though the method or process by which that opinion is arrived at is flawed in some way this need not be fatal to a finding that it is a reasonable opinion. Secondly, we take a broad view of the way the opinion is reasonable arrived so that even if there are flaws in the process these can be subsequently corrected, provided this is within a reasonable time period which would usually be no later than the internal review.”

The ICO agrees with the approach in Mcintyre. However case officers should also consider LTT17 & LTT118 in order to get the full ICO view on this issue

What makes an opinion “overridingly reasonable in substance”

The IT in Mclntrye did not provide any guidance as to what makes an opinion “overridingly reasonable in substance”.

The Commissioner’s view is that this should be considered on a case by case basis, however the following factors may influence this decision

• The level of prejudice shown is “would” rather than “would be likely to”
• The severity and scope of the prejudicial effect
• Whether the prejudicial effect is to a core function of any public authority

The Commissioner therefore considers that we are most likely to find an opinion to be

“overridingly reasonable in substance” where we accept that the effect “would” occur, and where there is a wide ranging and severe prejudicial effect on the ability of a public authority to carry out a core (rather than a subsidiary or support) function. However, the Commissioner would emphasise that this is not a definitive test and it may still be possible to find an opinion overridingly reasonable in substance if some of these factors are not present.