The FOIA Commission published its report into the FOIA yesterday, including 21 recommendations for improving the Freedom of Information Act. Two of the recommendations of most interest to our clients are discussed below. An overview of the report and recommendations can be found here.
Recommendation 12: The government should legislate to amend section 36 to remove the requirement for the reasonable opinion of a qualified person
Under section 36 of the Act, a public authority can withhold information if disclosure would or would be likely to:
- prejudice collective responsibility or the equivalent in Wales and Northern Ireland;
- inhibit the free and frank provision of advice or exchange of views; or
- otherwise prejudice the effective conduct of public affairs.
This is a broad exemption which can be usefully applied to information which does not easily fall within the scope of other exemptions. However, section 36 requires the authority's 'qualified person' to give a 'reasonable opinion' that disclosure would or would be likely to cause the types of prejudice or inhibition listed above. In practice this usually means sign off from an organisation's Chief Executive.
The commission has recommended that the requirement for the reasonable opinion of a qualified person should be removed. It was concerned that this requirement undermines the authority of the Information Commissioner because it limits the IC to considering whether the qualified person's opinion is reasonable. It is possible for the qualified person's opinion to be 'reasonable' but still for the IC to disagree with the opinion - because reasonable people may differ. The Commission regarded this as an undesirable limitation on the role of the IC.
In practice we do not consider this change would lead to a significant change in the outcome of section 36 appeals to the IC. This is because the 'reasonable opinion' only applies to the question of whether a public authority is or is likely to experience prejudice. It does not apply to the public interest test. If the IC considers that the opinion on prejudice is reasonable but ultimately not one he agrees with, he is likely to find against the public authority when considering the public interest test.
The Commission has also recommended that while the 'reasonable opinion' requirement be removed, consent of a senior manager should still be obtained to apply section 36. Broadening the scope of who can sign off on the application of section 36 would make life easier for public authorities.
Recommendation 17: That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC
Under the existing system, there are a number of bodies to which appeals can be made in respect of a decision regarding a request under the Act – the public authority itself, the IC, and then the First-tier Tribunal. The Commission recognised that it is unusual to have two independent bodies (the IC and the First-tier Tribunal) carrying out a full merits review of a decision.
The Commissioner has recommended removing the right of appeal to the First-tier Tribunal. It considers that this would serve to enhance and strengthen the role of the IC, who would be the final arbiter of appeals on the substance of requests. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal on a point of law (and onwards to the Court of Appeal and Supreme Court).
Considering and responding to appeals can be a time consuming and expensive process for authorities. The removal of the First-tier tribunal appeal rights should reduce this burden while still ensuring that those aggrieved have a legitimate right of appeal.