Line to take - LTT105 - Claims of more than one limb of s36(2)

From FOIwiki
Jump to: navigation, search
  • FOI/EIR: FOI
  • Section/Regulation: s36(2)(c)
  • Issue: Claims of more than one limb of s36(2)
  • Source: Information Tribunal
  • Details: Evans / MOD (26 October 2007); Mcintyre / MOD (14 January 2008)
  • Related Lines to Take: n/a
  • Related Documents: EA/2006/0064 (Evans), EA/2007/0068 (Mcintyre)
  • Contact: LA
  • Date: 10/02/2009
  • Policy Reference: LTT105
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

It will be acceptable to claim more than one limb of s36(2) for the same information, as long as arguments can be made in support of the claim for each individual subsection.

In order to engage section 36(2)(c) — otherwise prejudice the effective conduct of public affairs some prejudice other than that protected by another limb of section 36 must be shown.

The exemption at s36(2)(c) is intended to apply to those cases where it would be necessary in the interest of good government to withhold information, but which are not covered by another specific exemption.

Further Information

Claims of more than one limb of s36(2)

It will be acceptable to claim more than one limb of s36(2) for the same information, as long as arguments can be made in support of the claim for each individual subsection.

For example it will be acceptable to claim both s36(2)(b)(i) and s36(2)(b)(ii), as long as arguments can be made in support of the claim for each individual subsection. These subsections are not mutually exclusive.

Claims of s36(2)(c)

In order to engage section 36(2)(c) — otherwise prejudice the effective conduct of public affairs some prejudice other than that protected by another limb of section 36 must be shown.

In R Evans v The Information Commissioner & the Ministry of Defence the Tribunal commented on the relationship between s36(2)(c) and the other subsections of 36(2).

In this case the public authority claimed before the Tribunal that both section 36(2)(b)(i) and section 36(2)(c) applied to the withheld information.

The Tribunal commented at (paragraph 53) that “The principle arguments in favour of this exemption [36(2)(c)] advanced by the MOD and IC were similar to those put forward for section 36(2)(b)(i): that those attending such meetings would be inhibited from expressing themselves feely and frankly if there were a real possibility of disclosure under the Act; and like wise for those who recorded the meeting.” However, if the same arguments are to be advanced, then the prejudice feared is not “otherwise”. Some prejudice other than that to the free and frank expression of advice (or views as far as section 36(2) (b) (ii) is concerned) has to be shown for section 36(2)(c) to be engaged.

In McIntyre v The Information Commissioner& the Ministry of Defence the Tribunal commented on the intention behind the exemption at s36(2)(c). It said (at paragraph 25) that “this category of exemption is intended to apply to those cases where it would be necessary in the interest of good government to withhold information, but which are not covered by another exemption, and where disclosure would prejudice the public authority’s ability to offer an effective public service or to meet its wider objectives or purposes due to the disruption caused by the disclosure or the diversion of resources in managing the impact of the disclosure.