Chapters: 01 | 02 | 03 |
04 |
Annex A 
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Annex B |
Annex C |
Annex D
3.1 The exemption under section 36 is not an absolute exemption. It can only be used when the prejudice or harm set out in subsection (2) can be demonstrated. It is not enough that the information relates to, for example, the conduct of public affairs. Its disclosure must be reasonably likely to prejudice the effectiveness of the conduct of public affairs.
3.2 The exemption is also subject to the public interest test in section 2. That means that even where prejudice can be demonstrated it is still necessary to consider whether the public interest in withholding outweighs the public interest in disclosure. Only if that is the case should the information be withheld.
3.3 Only information held by Parliament is not subject to the public interest test in section 2. In addition, a certificate by either the Speaker of the House of Commons or the Clerk of the Parliaments that disclosure of the information held by Parliament would be prejudicial or harmful within the meaning of the section is taken to be conclusive evidence of that fact (which means that it cannot be questioned by the Commissioner). You should note that these certificates apply only to information 'held by Parliament'. The same information in the hands of a department is subject to section 2 (unless it falls, as it may do, within section 34 on parliamentary privilege).
3.4 Information can be withheld only if it is the reasonable opinion of a qualified person that its disclosure would have the adverse effect specified, and the public interest in withholding it outweighs the public interest in disclosure. 'Reasonable' does not mean that the decision has to be the only one possible in the circumstances, or even that it is the one that most people, faced with those circumstances, would have reached. It must, however, be within a range of reasonable responses. A reasonable opinion must be based on all the available evidence and must take into account relevant factors. It must be a considered opinion in which care has been taken to take account of the particular circumstances of the case.
3.5 It will be extremely important to document thoroughly the reasons why information falls within section 36(2). The provision is wide-ranging and any decision to withhold information under it should be narrowed down as precisely as possible by clear reference to the harm that would be caused by disclosure of the information in question. It is because the scope of the provision is so potentially wide that the requirement for a qualified person to take the decision to withhold in each case has been included.
3.6 Unlike some other provisions of the Act, section 36 does not specify that the opinion should take the form of a certificate. However, it must clearly be documented. Departments will need to set out their own arrangements for seeking the agreement of Ministers or (for non-Ministerial departments) those in charge of the department, that the exemption applies.
3.7 The decision in section 36 on whether a disclosure would or would be likely to have the prejudicial or inhibiting effects specified can be taken only by a 'qualified person'. The qualified person cannot delegate this decision-making function to others. This is not a case where powers conferred on a Minister can be exercised by officials on his behalf. A decision to exercise the power, therefore, must be submitted to Ministers (for most government departments) for their agreement. This is an indication that section 36 must be used with great deliberation.
3.8 Subsection (5) sets out who is the qualified person in each case. In some cases, it specifies a particular office holder. For the rest, section 36(5)(o), provides for the qualified person to be either a Minister, or the public authority if authorised for that purpose by the Minister, or any officer or employee of the authority, if authorised by the Minister for that purpose. Any authorisation of a qualified person made by a Minister of the Crown may relate to a specified person, or persons falling within a specified class; may be general or limited to particular classes of case; and may be granted subject to conditions. Subsection (5)(o) covers a wide range of bodies. For example, all local authorities in England are covered by it. (Welsh local authorities are covered by subsection (5)(h).)
3.9 For United Kingdom Government departments, the qualified person is either any Minister of the Crown or, for departments which are not headed by a Minister, the commissioners or other person in charge of the department. For Northern Ireland departments, the qualified person is the Northern Ireland Minister in charge of the department. For the National Assembly for Wales, it is the First Secretary.
3.10 It will typically be a Minister in the Department to which the request was made who acts as the qualified person. Unlike some provisions, any Minister of the Crown can exercise this function; it does not have to be a Cabinet Minister. In practice, a prepared form of advice to Ministers asking them to consider exempting the material, and a prepared form of words setting out the Minister's opinion that exemption applies is likely to be the most appropriate way of proceeding. Ministers will be asked to make a personal assessment - it is their opinion which determines the application of the exemption - and the facts must be fully laid before them and the reasons fully articulated.
3.11 Section 36 is designed to protect the effective conduct of public affairs, to the extent that that is dependent on:
3.12 These are not exhaustive. Other disclosures might also prejudice the effective conduct of public affairs. On the other hand, the need for each non-disclosure to be authorised by a Minister or other specifically authorised person can be taken as an indication that reliance on this exemption to withhold information requires particular circumspection. In most cases where the effective conduct of public affairs would be likely to suffer as a result of the disclosure of information, those circumstances are addressed under a separate and specific exemption provision of the Act. Section 36 is residual. Ministers accepted during the debates on the Bill that one of the purposes of section 36 was to provide for individual situations which had not yet been envisaged but where it became clear, on the facts, that disclosure might not be in the public interest.
3.13 It is also important to remember that the other primary purpose of section 36 is to address for other bodies those situations which, for government departments, are effectively addressed by section 35.
3.14 In weighing the competing public interests in order to determine whether information ought to be disclosed, it will be necessary to consider the extent of the harm caused to the relevant interest such as collective responsibility by disclosure of the information in question against the background of the general public interests set out below and in the chapter covering section 35. For example, if the prejudice to collective responsibility is slight, perhaps because of the age of the material, although the general public interest in maintaining the convention remains high, the balance may come down in favour of disclosure. However, given the important public interest in the principles of good government this exemption seeks to protect, where there is more than minimal prejudice or harm caused or likely to be caused by disclosure of the information in question, the public interest is more likely to come down in favour of disclosure.
As with consideration of the public interest in relation to information which falls within section 35, the following considerations, dependent on the specific facts of the case, are likely to be relevant. Considerations which may weigh in favour of disclosure include:
3.15 Considerations which may weigh in favour of withholding information include:
3.16 Which other bodies need to be consulted will vary with the nature of the information sought. If the enquiry relates to sensitive or significant information, or its release would create a precedent for Government you should consult the Department for Constitutional Affairs (DCA). Where the issue of collective responsibility of Ministers may be engaged DCA will consult the Cabinet Office, who are responsible for the Code of Conduct for Ministers.
3.17 Under section 63, information which is exempt information by virtue of section 36 ceases to be exempt when it becomes a historical record, that is 30 years after it, or the most recent paper on the file in which it is contained, was created. The 'neither confirm nor deny' provisions are also disapplied to records exempted under section 36 once they become historical records. This does not mean that there may not be other exemptions which continue in force (e.g. section 27 on international relations).
3.18 Even before the information becomes a historical record, the prejudice caused by its disclosure is likely to reduce with time. This should, therefore, always be a factor to be taken into consideration when deciding whether or not the information is exempt. As with information that is exempt under section 35, a timespan of two administrations (that is Governments of different political parties) is a good rule of thumb about whether information held by central government is likely still to be sufficiently sensitive that its disclosure would have the effects referred to in section 36(2). Information held by other public bodies will have varying periods of sensitivity.