Line to take - LTT36 - Application of PIT to s36
- FOI/EIR: FOI
- Section/Regulation: s2, s36
- Issue: Application of PIT to s36
- Source: Information Tribunal
- Details: Guardian & Brooke / BBC (8 January 2007)
- Related Lines to Take: LTT35, LTT13
- Related Documents: EA/2006/0011 and EA/2006/0013, Awareness Guidance 25
- Contact: EW/LA
- Date: 11/05/2009
- Policy Reference: LTT36
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
When considering the public interest in relation to section 36, the Commissioner can consider the severity, extent and frequency of the prejudice or inhibition to the effective conduct of public affairs etc.
He should not however replace the Qualified Person’s opinion as to the likelihood of the prejudice occurring with his own opinion.
In the case of Guardian & Brooke v The Information Commissioner& the BBC, the Information Tribunal acknowledged that the application of the public interest test to the s36 exemption, “involved a particular conundrum,” noting that although it is not for the Commissioner to form his own view on the likelihood of prejudice under this section (because this is given as a reasonable opinion by a qualified person), in considering the public interest, “it is impossible to make the required judgement without forming a view on the likelihood of inhibition or prejudice” (para 86).
In the Tribunal’s view, the reasonable opinion is limited to the degree of likelihood that inhibition or prejudice would occur, on the balance of probabilities. It therefore argued that the reasonable opinion, “does not necessarily imply any particular view as to the severity or extent of such inhibition [or prejudice] or the frequency with which it will or may occur, save that it will not be so trivial, minor or occasional as to be insignificant” (para 91).
This means that whilst the Commissioner should give due weight to the reasonable opinion of the qualified person when assessing the public interest, he can and should consider the severity, extent and frequency of prejudice or inhibition to the subject of the effective conduct of public affairs etc.
The Commissioner considers that this approach is in line with his more general approach to the effect of engaging an exemption on the subsequent Public Interest Test, as set out in LTT13 - “The Prejudice Test”. In general terms, by accepting that a prejudice based exemption is engaged it is also accepted in the Public Interest Test that the prejudice is not trivial or insignificant and that the prejudice either “would” occur, or “would be likely to” occur, depending on the level of likelihood accepted.
Similarly, the Commissioner considers that, where section 36 is found to be engaged*, giving due weight to the reasonable opinion of the Qualified Person in the Public Interest Test will mean
- accepting that the likelihood of the prejudice occurring is as accepted by the Qualified person (see LTT13 for further comment on where the level of prejudice accepted is not specified by the Qualified Person), and
- accepting that the nature of the prejudice is not trivial or insignificant
Although for other exemptions it may be acceptable for the Commissioner to replace the level of likelihood of prejudice argued by the public authority with his own view of its likelihood and then carry this through to the Public Interest Test (see LTT13) this will not be the case for section 36. If a public authority claims that a prejudice “would” occur it is not for the Commissioner to change the basis on which the exemption is engaged and thus the likelihood of prejudice weighed in the Public Interest Test by replacing the qualified person’s “would” opinion with his own “would be likely to” opinion. His options are to either accept the Qualified Person’s opinion on likelihood as it stands, or to reject the engagement of the exemption altogether if the opinion is not “reasonably arrived at” and “objectively reasonable” (see LTT35)
Whilst finding the exemption to be not engaged may seem a harsh approach - especially when contrasted with our approach to other exemptions where if the “would” threshold is not met the Commissioner may accept “would be likely to” instead -the Commissioner considers that this is the nature of the section 36 exemption. Section 36 makes special provision for the Qualified Person’s opinion to be given particular weight, in recognition of the considered judgement that a Qualified Person is expected to be able to bring to the task of providing such an opinion. The “down side” of giving the Qualified Person’s opinion due weight is that if the Qualified Person “gets it wrong” the engagement of the exemption will fall on this basis.
Also, it will not be acceptable to accept the Qualified Persons “would” opinion when engaging the exemption and then argue that the likelihood of the prejudice occurring is less than “more probably than not” in the Public Interest Test. This would not be giving “due weight” to the Qualified Person’s opinion.
(*) If you do not consider that it was reasonable for the Qualified Person to reach the opinion they did, then you are effectively questioning whether s36 is engaged. However, if you do not have sufficient grounds to find that the exemption is not engaged (see LTT35) and thus conclude that s36 is engaged, then you will have to give the Qualified Person’s opinion due weight in the PIT even if you might have reached a different opinion yourself.