Section 36 of the Freedom of Information Act provides that:
"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.
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.
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).
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".
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,
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 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.
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.
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."
Introduction
1.1 Section 36 is central, along with section 35, to protecting
the delivery of effective central government. Whilst there is an important
public interest in disclosure of information about, for example, the advisory
and deliberative processes of central government, there is also a powerful
public interest in ensuring that there is a space within which Ministers
and officials are able to discuss policy options and delivery, freely and
frankly.
Relationship with section 35
1.2 Section 36 is closely related to section 35. There
are a number of key points to note about the similarities and differences
between sections 35 and 36:
First, it only applies to information which is not exempt
information under section 35. So if information relates to Ministerial
communications, then it will fall to be considered under section 35
and not under section 36. The exemptions under both section 35 and
section 36 cannot be claimed cumulatively. If information is exempt
under section 35, then section 36 is excluded from consideration.
It is possible to argue that section 35 applies but in the event that
the Information Commissioner disagrees, that the conditions of section
36 are fulfilled anyway.
The second key point is the scope of section 36. Section 35 applies
only to information held by a government department or the National
Assembly for Wales. Its provisions on Ministerial communication and
private offices apply only to Ministers or Assembly Secretaries in
those administrations. Section 36, on the other hand, applies to all
public authorities covered by the Act. Information held by any of
those authorities may come within section 36. Thus, as noted in relation
to section 35, a draft policy paper sent by a Government department
to a local authority would fall to be considered under section 35
if the Government were asked to disclose it, but under section 36
by a local authority faced with the same request.
Thirdly, unlike section 35, section 36 works not by reference to
a description of information held, but by reference to the
effects of disclosure. Section 36 contains no restrictions
at all on the nature or content of the information to which it applies;
it focuses solely on whether the disclosure of information would have
certain detrimental effects.
But fourthly, like section 35, it is qualified by the balance of
public interest test.
'The reasonable opinion of a qualified person'
1.3 A unique feature of the section 36 exemption, however,
is that it has a special mechanism for determining whether a disclosure
would have the sort of effect which would bring it within the terms of the
exemption. The exemption will only apply if the reasonable opinion of a
qualified person is that certain forms of adverse effect would or would
be likely to follow from a disclosure. In relation to information held by
Government, the qualified person must be a Minister or, if held by a non-Ministerial
department, the persons in charge of that department. This aspect is considered
further below.
The section 36 areas
Section 36 is focused on the capability of the disclosure of information
adversely to affect the following areas:
the maintenance of the convention of the collective responsibility
of the Ministers of the Crown;
the work of the Executive Committee of the Northern Ireland Assembly;
the work of the executive committee of the National Assembly of
Wales,
the free and frank provision of advice;
the free and frank exchange of views for the purposes of deliberation;
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Annex B