[reposted from LinkedIn]
I think there’s a plain error of law in this Information Tribunal judgment (O’Hanlon & Anor v Information Commissioner & Anor [2024] UKFTT 1061 (GRC)).
Section 36(2)(b) of the Freedom of Information Act 2000 (FOIA) says that information is exempt if, in the reasonable opinion of a qualified person, disclosure would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice (or would be likely to do so) the effective conduct of public affairs.
I’ve written elsewhere about the flawed concept of who a “qualified person” is, but, at least in relation to govt departments, it’s straightforward: it’s a minister (s36(5)(a)).
In June 2022, Lord True, Minister of State in the Cabinet Office, in the context of a then-live FOIA request, gave a s36 “reasonable opinion”, as a qualified person, that internal department email addresses were exempt, and – crucially – that his opinion was to apply “going forward” in relation to any similar requests. Subsequently, the Cabinet Office applied his opinion to a new request which was received after he had given it.
The ICO said this was not permitted: “the provisions of s36 only become relevant once a request for information has been made…a Qualified Person’s opinion must therefore necessarily post-date the request for the information, and must be an opinion relating to the specific request”.
Not so, said the Tribunal: s36(6)(b) allows an “authorisation” to be “general”, and, therefore “a general authorisation must include be [sic] forward looking to other requests”.
But that is not what “authorisation” means in s36: the word only occurs, prior to s36(6)(b), in s36(5), and it refers to the authorisation of persons as qualified persons to give a reasonable opinion. In other words, the qualified person gives an opinion – not an “authorisation”. The reference in s36(6)(b) to an authorisation being permitted to be “general” is followed by “or limited to specific classes of case” – i.e. a person may be authorised in general to give a reasonable opinion, or authorised (perhaps they have a specialism) only in certain cases).
It does not mean that they are “authorised” to give a prospective qualified opinion that classes of information will always be exempt (subject to a public interest test).
The Tribunal’s reading of s36(6)(b) heavily informed its judgment, and it’s certainly questionable whether, but for this error, it would have decided in favour of giving this “prospective effect” to some s36 qualified opinions.
One hopes the ICO will appeal – because there will otherwise be a risk that public authorities will start classifying, of their own accord, certain classes of information as “always exempt”.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
informationrightsandwrongs 