Who I've worked with
Essential Websites
The Freedom of Information Officer's Handbook
Guide to making FOI requests
Guide to FOI Exemptions
Guide to the EIRs
Guide to the GDPR
Guide to organising in-house training
Who is FOIMan?
FOIMan
Making information rights clear
Menu itemMenu item
A qualified opinion
The defeat of the Mysterious Veto?
Peeps [at the] diary
FOIMan explains who is "qualified" to give an opinion under the exemption for prejudice to effective conduct of public affairs (section 36).
I may be qualified, but I'm not a qualified person
If you've ever had a freedom of information request turned down under the exemption at section 36 covering prejudice to the conduct of public affairs, you will be familiar with the phrase "qualified person". There's sometimes confusion over what this means, so I thought I'd devote a brief post to it.
How does one "qualify" for this role? Is there an exam? Do you get letters after your name?
The "qualified person" is not a fancy name for the organisation's FOI Officer as I've seen suggested once or twice. And it isn't just someone picked at random by the public body to make decisions about what can and can't be released.
The qualified person is someone very specific. The Act itself lists a range of organisations and specifies exactly who the qualified person is. For government departments it is a minister. For the Greater London Authority it is the Mayor of London. Rather bizarrely this means that Boris Johnson can decide whether or not information held by the London Assembly which is supposed to hold him to account should be disclosed, which always struck me as an oddity of the legislation when I worked there. But for many parts of the public sector it is not spelt out in the Act. Instead, it provides that a minister should specify who the qualified person is for those organisations. In practice this means that Secretaries of State or their ministers have issued orders declaring who the qualified person is for areas within their brief. For example, David Willetts, the minister for higher education, has issued such an order indicating that Vice-Chancellors or their equivalent should fulfil this role in the higher education sector (which, helpfully, since the content of the BIS website was moved to www.gov.uk, I cannot now locate!). In local authorities, DCLG has set out that Chief Executives and Monitoring Officers should be the qualified person.
What are the practical consequences of this? Well, if you're an FOI Officer make sure you know who your qualified person is. I've seen responses where the authority clearly didn't understand this and because of that the exemption is invalid. In the event of an appeal to the Information Commissioner, one of the first things he'll check is whether the decision was taken by the right person, and he may ask for evidence that the person concerned is the qualified person for that public body. For requesters, it's worth checking if the person who made the decision was the "qualified" one for the same reason. An authority that doesn't understand this provision is probably failing to understand other basic requirements of the Act.
For more on section 36, see my exemption index post.
FOI shorts – The Telegraph, Justice Committee and Human Rights
Avoid using the C word
When it comes to making FOI requests, it should be quality over quantity
There's a third-party copy of Dave Willetts' authorisation order at
http://www.gold.ac.uk/media/section36-qualifiedperson.pdf
Keith Edkins
March 17, 2014 at 12:12 pm	6 years ago
In fact s36 does not require Boris Johnson as the qualified person to make the decision on release but only to give an opinion as to whether specified prejudice is or is likley to occur – and that opinion must be reasonable and reasonably reached. There are strong indications from the Tribunal etc. that the final decsion should be elsewhere so as not to confuse the very different issues – e.g. public interest should be largely irrelevant to the opinion but will be highly relevant to the release decision. See, on separation of these functions, e.g. McIntyre v ICO EA/2007/0068
Phil Bradshaw
March 20, 2014 at 5:42 pm	6 years ago
Subscribe to FOIMan blogposts
Contact FOIMan
FOIMan is based in London, UK.
Use the contact form to get in touch, email me at paul(Replace this parenthesis with the @ sign)foiman.com or telephone on +44 (0)7799 654509.
Any information you supply will be used to handle your enquiry. Further details of how your personal data will be looked after can be found on the Your personal data page.
© Paul Gibbons 2019. All rights reserved except where otherwise indicated. FOIMan logo by Stuart Walsh and Paul Gibbons.
Who is FOIMan?-
Your personal data-
Back to Top Menu itemMenu item
This website only uses cookies essential to its functioning. For further information see the Your personal data page or click here. Find out more
Find out about cookies