Line to take - LTT75 - Inter-relation of s35 & s36, and of s30 & s31

• FOI/EIR: FOI
• Section/Regulation: s30, s31, s35, s36
• Issue: Inter-relation of s35 & s36, and of s30 & s31
• Source: Decision Notice
• Details: [Redacted name] / Cabinet Office (30 July 07)
• Related Lines to Take: n/a
• Related Documents: FS50086299, Awareness Guidance 24, Awareness Guidance 25
• Contact: EW
• Date: 11/10/2007
• Policy Reference: LTT75
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Section 36 only applies to information not exempt by virtue of section 35. Likewise section 31 only applies to information not exempt by virtue of section 30. This means that if s35 / s30 does apply to the information — even where the public interest weighs in favour of disclosure — s36 / s31 cannot.

Further Information

In respect of information held by a government department or the National Assembly for Wales, section 36 can only apply if that information is not exempt by virtue of section 35. In other words, if section 35 is engaged, section 36 is not.

In the same way, and for all information, section 31 can only apply to information that is not exempt by virtue of section 30. Although s35 and s36 are more commonly applied in the alternative, the discussion below applies equally (with the exception of the last sentence) to sections 30 and 31.

Where a public authority has applied s35 and s36 in the alternative and the ICO finds that s35 does apply, we must find, as a necessary consequence of this that s36 does not. This will remain the case even where we find that the public interest weighs in favour of disclosure.

This is because in the ICO’s view information is exempt if an exemption is engaged. The effect of the public interest test is to determine whether or not information should be disclosed, even though it is exempt. It is not the case that where the public interest favours disclosure the information ceases to be exempt.

This is supported by a literal reading of section 2 which states that Section 1(1)(b) — the duty communicate information which is held — does not apply to information which is exempt by any provision of Part II, if in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing it. The question here is not whether the public interest is such that the exemption no longer applies.

It is also supported by a pragmatic understanding of the public interest test in relation to, at least, s35(1) and s36. The ICO recognises that the interest being protected by these two sections is broadly the same. Even if a public authority could claim both s35 and s36 in respect of the same information therefore, it would necessarily be the case that if the public interest weighed in favour of disclosure in relation to section 35(1), it will also weigh in favour of disclosure in relation to s36.

The approach above was taken in case FS50086299, in which the public authority had claimed that the requested information was exempt under s35(1)(a), and to the extent that that did not apply, s36(2)(b)(i) and (ii). The Commissioner decided that all of the information related to the formulation or development of government policy.

The decision notice states: “Since section 36 does not apply to information which is exempt by virtue of section 35, and the Commissioner has decided that section 35 does in fact apply to all the information in this case, the information therefore cannot be exempt by virtue of section 36. This remains the case even though the Commissioner has concluded that, by virtue of the section 2 public interest test, the duty to disclose remains.” (para 25)

In relation to the s36 PIT point, the DN goes on to say: “Even if section 36 had been engaged, the Commissioner considers that the public interest test would have raised similar issues and produced the same result, as in relation to section 35.” (para 26)

Where a public authority has applied s35 and s36 in the alternative and the ICO finds that s35 does not apply to all or any of the information, s36 must then be considered in relation to that information.

The ICO accepts that s35 public authorities may claim s36 as an alternative or fall back exemption to the extent that s35 is not engaged. A reasonable opinion in respect of all relevant information must however be given by the qualified person.