FOIA Section 36 Exemption

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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
  • LTT148 - Public interest arguments presented in favour of maintaining a relevant exemption for withholding information on lobbyists - 24/03/2009
  • LTT149 - Public interest in disclosing information about lobbyists - 24/03/2009
  • LTT17 - Investigation of the reasonable opinion of the qualified person - 02/03/2009
  • LTT13 - Prejudice test - 05/01/2009
  • LTT129 - Safe space arguments - 29/10/2008
  • LTT128 - Wider impact of disclosure on the conduct of good government - 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
  • 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

Resources


Freedom of Information Act 2000
Exemptions
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