FOIA Section 36 Exemption

Section 36: Prejudice To Effective Conduct Of Public Affairs

Section 36 exempts information whose disclosure would be likely to have any the following effects:

1. prejudice collective Cabinet responsibility;
2. inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation; or
3. prejudice the effective conduct of public affairs.

Key points:

• Section 36 can only be used if, in the reasonable view of a "qualified person", disclosure of the requested information would have one of the specified prejudicial effects. For most government departments, this means that a Minister of the Crown must decide that the exemption applies before it can be relied on to refuse a request for information;
• Section 36 can only be used if section 35 does not apply to the information;
• The application of section 36 is subject to a public interest test (unless the information held by the House of Commons or the House of Lords).

What the law says

36 Prejudice to effective conduct of public affairs

(1) This section applies to—

(a) information which is held by a government department or by the National Assembly for Wales 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 executive committee of the National Assembly for Wales,

(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”.

(5) In subsections (2) and (3) “qualified person”—

(a) in relation to information held by a government department in the charge of a Minister of the Crown, means any Minister of the Crown,

(b) in relation to information held by a Northern Ireland department, means the Northern Ireland Minister in charge of the department,

(c) in relation to information held by any other government department, means the commissioners or other person in charge of that department,

(d) in relation to information held by the House of Commons, means the Speaker of that House,

(e) in relation to information held by the House of Lords, means the Clerk of the Parliaments,

(f) in relation to information held by the Northern Ireland Assembly, means the Presiding Officer,

(g) in relation to information held by the National Assembly for Wales, means the Assembly First Secretary,

(h) in relation to information held by any Welsh public authority other than the Auditor General for Wales, means—

(i) the public authority, or

(ii) any officer or employee of the authority authorised by the Assembly First Secretary,

(i) in relation to information held by the National Audit Office or the Comptroller and Auditor General, means the Comptroller and Auditor General,

(j) in relation to information held by the Northern Ireland Audit Office, means the Comptroller and Auditor General for Northern Ireland,

(k) in relation to information held by the Auditor General for Wales, means the Auditor General for Wales,

(l) in relation to information held by any Northern Ireland public authority other than the Northern Ireland Audit Office, means—

(i) the public authority, or

(ii) any officer or employee of the authority authorised by the First Minister and deputy First Minister in Northern Ireland acting jointly,

(m) in relation to information held by the Greater London Authority, means the Mayor of London,

(n) in relation to information held by a functional body within the meaning of the [1999 c. 29.] Greater London Authority Act 1999, means the chairman of that functional body, and

(o) in relation to information held by any public authority not falling within any of paragraphs (a) to (n), means—

(i) a Minister of the Crown,

(ii) the public authority, if authorised for the purposes of this section by a Minister of the Crown, or

(iii) any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown.

(6) Any authorisation for the purposes of this section—

(a) may relate to a specified person or to persons falling within a specified class,

(b) may be general or limited to particular classes of case, and

(c) may be granted subject to conditions.

(7) A certificate signed by the qualified person referred to in subsection (5)(d) or (e) above certifying that in his reasonable opinion—

(a) disclosure of information held by either House of Parliament, or

(b) compliance with section 1(1)(a) by either House,

would, or would be likely to, have any of the effects mentioned in subsection (2) shall be conclusive evidence of that fact.

ICO Lines To Take

Relevant Lines to Take

LTT118 - Flaws in the application of s36 - 10/12/2009 LTT35 - Interpretation of ‘reasonable opinion’ - 20/11/2009 LTT36 - Application of PIT to s36 - 05/11/2009 LTT105 - Claims of more than one limb of s36(2) - 02/10/2009 LTT146 - Public Interest Test for "raw notes" and "aide memoire notes" - 03/09/2009 LTT150 - "Meta-requests" (requests about requests) - 29/07/2009 LTT149 - Public interest in disclosing information about lobbyists - 24/03/2009 LTT148 - Public interest arguments presented in favour of maintaining a relevant exemption for withholding information on lobbyists - 24/03/2009 LTT17 - Investigation of the reasonable opinion of the qualified person - 02/03/2009 LTT13 - Prejudice test - 05/01/2009 LTT128 - Wider impact of disclosure on the conduct of good government - 29/10/2008 LTT129 - Safe space arguments - 29/10/2008 LTT131 - Risk to the role and integrity of Civil Service - 11/03/2008 LTT130 - "Chilling effect" arguments - 11/03/2008 LTT75 - Inter-relation of s35 & s36, and of s30 & s31 - 10/11/2007 LTT66 - Minutes & agendas - 21/08/2007 LTT61 - Advice to Decision Makers - 08/07/2007 LTT50 - Disclosure of minutes - 07/05/2007

Decision Notices

Complaints upheld / partly upheld (P)

Complaints not upheld

FS50140361 - Cabinet Office - 31/03/2010 FS50121686 - Ministry of Justice - 30/03/2010 FS50183692(P) - Royal Mail - 25/03/2010 FS50146907 - The Treasury Solicitor's Department (TSOL) - 23/03/2010 FS50144707(P) - Department for Children, Schools and Families - 01/03/2010 FS50185270(P) - Department of Health - 01/03/2010 FS50198232(P) - National Audit Office - 11/02/2010 FS50194621(P) - Ministry of Defence - 04/02/2010 FS50164902 - Home Office - 03/02/2010 FS50216168 - HM Revenue and Customs - 25/01/2010 FS50173585 - Cabinet Office - 22/12/2009 FS50186903(P) - Department for Culture, Media and Sport - 22/12/2009 FS50154684 - Department for Culture, Media and Sport - 15/12/2009 FS50147876(P) - Department for Culture, Media and Sport - 10/12/2009 FS50191595(P) - Arts Council England - 23/11/2009 FS50186804 - Department of Health - 19/11/2009 FS50162256 - Home Office - 16/11/2009 FS50110034 - Her Majesty's Revenue and Customs - 03/11/2009 FS50131984 - Export Credits Guarantee Department - 20/10/2009 FS50131117 - Home Office - 15/10/2009 FS50088848 - Attorney General’s Office - 28/09/2009 FS50196750(P) - Olympic Delivery Authority - 22/09/2009 FS50171494 - University of East Anglia - 21/09/2009 FS50183238 - Surrey Police - 25/08/2009 FS50120905(P) - Ministry of Justice - 27/07/2009 FS50123984(P) - Export Credits Guarantee Department - 21/05/2009 FS50083102(P) - Department for Children, Schools and Families - 31/03/2009 FS50140374 - University of Central Lancashire - 30/03/2009 FS50075956 - Department of Health - 23/03/2009 FS50105778 - UK Borders Agency - 05/03/2009 FS50149374 - Department of Health - 22/12/2008 FS50149373 - Department of Health - 22/12/2008 FS50149375 - Department of Health - 22/12/2008 FS50175121 - Department of Health - 15/12/2008 FS50178057(P) - Department for Culture, Media and Sport - 15/12/2008 FS50145238(P) - National Offender Management Service - 25/11/2008 FS50111678(P) - Cabinet Office - 17/11/2008 FS50144991 - Rochdale Metropolitan Borough Council - 10/11/2008 FS50169313(P) - British Museum - 23/10/2008 FS50098388 - Cabinet Office - 01/09/2008 FS50104809 - Ministry of Defence - 11/08/2008 FS50174491 - Home Office - 30/06/2008 FS50130129 - Warwickshire County Council - 16/06/2008 FS50137686 - Cabinet Office - 27/05/2008 FS50121390 - Cabinet Office - 14/05/2008 FS50150598 - Ministry of Justice - 01/05/2008 FS50120314 - Department of Health - 15/04/2008 FS50072940 - University College London - 02/04/2008 FS50069392 - Department of Health - 18/03/2008 FS50122585(P) - Cumbria County Council - 18/03/2008... further results

FS50256704 - Royal Mail - 08/04/2010 FS50132961 - Ministry of Defence - 30/03/2010 FS50235016 - Rotherham NHS Foundation Trust - 04/03/2010 FS50164940 - Department for Children, Schools and Families - 04/03/2010 FS50204107 - Department for Communities and Local Government - 01/03/2010 FS50209659 - BBC - 25/02/2010 FS50159579 - Department for Environment Food and Rural Affairs - 14/12/2009 FS50166596 - Home Office - 02/12/2009 FS50129969 - Electoral Commission - 01/12/2009 FS50147508 - National Offender Management Service - 30/11/2009 FS50220528 - University of Oxford - 27/10/2009 FS50192069 - Newcastle College - 14/10/2009 FS50202969 - Haringey Council - 14/09/2009 FS50190780 - National Portrait Gallery - 02/06/2009 FS50078514 - Department for Business, Enterprise and Regulatory Reform - 31/03/2009 FS50128406 - Export Credits Guarantee Department - 23/02/2009 FS50129487 - Home Office - 20/01/2009 FS50155365 - Queen’s University Belfast - 18/12/2008 FS50150341 - Children and Family Court Advisory and Support Service - 15/12/2008 FS50165511 - Department for Work and Pensions - 29/07/2008 FS50088745 - Cabinet Office - 29/07/2008 FS50074593 - Medical Research Council - 07/07/2008 FS50155503 - Department for Children, Schools and Families - 29/04/2008 FS50107135 - Ministry of Defence - 25/02/2008 FS50097518 - Home Office - 08/01/2008 FS50082127 - Department for Business, Enterprise and Regulatory Reform - 08/01/2008 FS50146982 - NHS London - 03/12/2007 FS50077877 - South Tyneside Council - 01/10/2007 FS50092311 - Financial Services Authority - 27/09/2007 FS50133972 - Financial Services Authority - 20/09/2007 FS50096973 - Department for Education and Skills - 17/09/2007 FS50085374 - Department for Culture, Media and Sport - 30/08/2007 FS50081276 - Ministry of Justice - 30/07/2007 FS50089779 - Ministry of Defence - 25/06/2007 FS50103648 - Southport and Ormskirk Hospital NHS Trust - 14/06/2007 FS50073646 - Ministry of Justice - 05/06/2007 FS50086622 - Department of Trade and Industry - 04/06/2007 FS50115678 - Driving Standards Agency - 23/05/2007 FS50074788 - Northern Ireland Office - 27/02/2007 FS50108985 - Department of Finance and Personnel (NI) - 29/11/2006 FS50079488 - Export Credits Guarantee Department - 27/11/2006 FS50073128 - House of Commons - 04/09/2006 FS50084360 - Plymouth City Council - 23/08/2006 FS50082251 - Plymouth City Council - 23/08/2006 FS50082254 - Plymouth City Council - 23/08/2006 FS50086131 - Newcastle Upon Tyne NHS - 09/08/2006 FS50075177 - Foreign and Commonwealth Office - 27/07/2006 FS50102714 - Ministry of Defence - 25/07/2006 FS50066998 - Eastern Health & Social Services Board - 10/07/2006 FS50070769 - BBC - 15/02/2006... further results

Includes DNs up to: 26 April 2010

Equivalent exemptions in other jurisdictions

• Australia Section 47E

Resources

• Advice on the 'Qualified Person', BIS (now available through Internet Archives)

• Freedom of Information – Recent Developments (paras 31-34)

Freedom of Information Act 2000

Exemptions

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