Line to take - LTT17 - Investigation of the reasonable opinion of the qualified person: Difference between revisions

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It should also be noted that the extension to the 20 working day period for response in order to consider the public interest cannot be correctly claimed until the qualified person has given her or his opinion that information is exempt.
It should also be noted that the extension to the 20 working day period for response in order to consider the public interest cannot be correctly claimed until the qualified person has given her or his opinion that information is exempt.
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Revision as of 20:10, 3 September 2010

  • FOI/EIR: FOI
  • Section/Regulation 36
  • Issue: Investigation of the reasonable opinion of the qualified person
  • Source: Internal discussion, Information Tribunal
  • Details: Agreed by RT (08/09/2006) amendment agreed by GS (27/09/2007), Guardian & Brooke / BBC (8 January 2007), Mcintyre / MOD (4 February 2008), Home Office & MOJ (20 November 2008)
  • Related Lines to Take: LTT21, LTT35, LTT118
  • Related Documents: Awareness Guidance 25, EA/2006/0011 and EA/2006/0013 (Guardian & Brooke), EA/2007/0068 (Mcintyre), EA/2008/0006 (Home Office)
  • Contact: LA
  • Date: 03/02/2009
  • Policy Reference: LTT17
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Information can only be exempt by virtue of section 36 if, “in the reasonable opinion of a qualified person,” disclosure would or would be likely to lead to any of the adverse consequences identified in s.36 (2). In investigating cases involving s.36, case officers must:

  • Ascertain who is the qualified person/s for that particular authority
  • Establish that an opinion was given
  • Ascertain when the opinion was given
  • Consider whether the opinion given was reasonable in substance and reasonably arrived at

Further Information

N.B. This LTT should be read in conjunction with LTT35 & LTT118

1. Who is the qualified person?

Qualified persons may be listed in section 36(5) or may appear on the MoJ web site at

http://www.foi.qov.uk/guidance/exquide/sec36/annex-d.htm

The list provided at this link is useful, but it has to be taken into account that it hasn’t been updated for some time. The webpage itself now says that it is archived and is not being updated. If a public authority has a body or person authorised to act as the qualified person, and this does not appear in the Act or on the MOJ list, we may require confirmation that authorisation has been given. We would expect authorities to keep on file a record that authorisation has been given, so that this can be supplied to us in the event of any dispute.

The ability of the qualified person to determine whether information is exempt by virtue of section 36 cannot be delegated to another person. The reason for asking who gave the opinion in a section 36 case is to ensure that the decision was taken by the correct person. If the person who gives the opinion is not the qualified person, then information cannot be exempt. (but see also below and LTTs 35 and 118 for discussion about flaws in the process)

2. Was an opinion given?

There is no requirement in the Act for the qualified person to sign a certificate or to give an opinion in writing. The fact that there is no evidence of an opinion being given does not, therefore, prove that the exemption is not engaged. Although we may be content with an assurance that an opinion was given the “other matters” section of a DN should state that good practice is to keep a proper record (see also section below on Investigation). The question of whether the opinion was reasonably arrived at is dealt with below.

s36(7) provides that a certificate signed by the Speaker of the House of Commons or, in respect of the House of Lords, the Clerk of the Parliaments shall be conclusive evidence that disclosure would, or would be likely to have any of the effects mentioned in 36(2). Also according to section 2(3)(e), section 36 operates as an absolute exemption so far as it relates to information held by either the House of Commons or the House of Lords.

3. When was the opinion given?

In theory this should be a straightforward check to ensure that the qualified person’s opinion was obtained in advance of the request being refused under section 36 and prior to the commencement of the ICO investigation. In reality various complications may occur. See LTT118 in s36 for further discussion on this point.

It should also be noted that the extension to the 20 working day period for response in order to consider the public interest cannot be correctly claimed until the qualified person has given her or his opinion that information is exempt.

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