The Information Tribunal has recently given helpful guidance on the application of the section 36 FOIA 2000 exemption. Public authorities will be aware that this exemption applies if in the reasonable opinion of the "qualified person", disclosure of the requested information 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 otherwise to prejudice, the effective conduct of public affairs.
In William Thackeray v IC (EA/2011/0069), the Tribunal held that the section 36 exemption could still be relied on by a public authority to refuse a request where the "qualified person" provided her opinion after the twenty working day period for responding to the request (the exemption having already been relied on within that period), but by the time of the public authority's internal review. Further, a "qualified person" need not have actually reviewed the disputed information before giving his/her opinion provided that the opinion was based on a proper understanding of the disputed information.
The decision also confirmed that the section 42 exemption in respect of legal professional "litigation" privilege can apply even where the litigation concerned is subsequently withdrawn or settled.
Written by Simon Achonu