Recording the Qualified Person's opinion: Section 36 Freedom of Information tool

Our previous article focussed on the series of bitesize tools recently released by the Information Commissioner's Office (ICO) aimed at supporting Freedom of Information practitioners when deciding whether to apply certain exemptions to withhold information requested under the Freedom of Information Act (FOIA).

In this article, we highlight another simple but useful tool provided by the ICO: its template Record of the Qualified Person's Opinion Form for the purposes of applying the Section 36 FOIA exemption.

Section 36 FOIA

As a reminder, this exemption allows a public authority to withhold information from disclosure if doing so would, or would be likely to among other things:

• Inhibit the free and frank provision of advice (section 36(2)(b)(i)) 
• Inhibit the exchange of views for the purposes of deliberation (section 36(2)(b)(ii)), or
• Prejudice the effective conduct of public affairs (section 36(2)(c)).

It often includes arguments related to the "safe space" required to deliberate ideas and policies, and the "chilling effect" on internal deliberations if the information was publicly disclosed. Like many other FOIA exemptions, it is subject to a public interest balancing exercise.

The record of the Qualified Person's opinion form

The template form provided by the ICO relates to the unique requirement under Section 36 FOIA that a public authority has to obtain a "reasonable opinion" that the exemption applies from the public authority's "qualified person" (QP) – that is, a person or postholder specifically designated under section 36(5) for this role. Certain public authorities have their QP specified in Section 36(5) itself (for instance any Minister in relation to information held by a government department), but for most public authorities the QP is either a Government Minister, or the highest decision-making body of the authority if it has been specifically authorised by a Minister as such. The only exception to this is where the information in question is statistical information – in which case the QP opinion is not necessary.

The FOIA does not prescribe a set process by which such reasonable opinion from the QP is obtained, and public authorities are not required to use the ICO's template form.

However, the recent judgment of Garrard v Information Commissioner [2025] UKFTT 343 reminds public authorities of the importance of following a clear process to obtain a QP opinion that has a clear factual or reasoned basis which can be evidenced if needed. It also hints that a well-drafted form could – if actually completed by the QP in each case – serve as a useful method for capturing all necessary information, capable of being evidenced later down the line if necessary.

The case related to a request to the Cabinet Office for information about meetings held with then Prime Minister Boris Johnson and a wealthy business professional Gautam Adani. The Cabinet Office maintained part of the materials were exempt on the basis of Sections 36(2)(b)(i) and (ii) or alternatively Section 36(2)(c). The Court, in dismissing the application of any Section 36 exemption, held that it was "unfortunate" that the QP (a Government Minister) had not used the template form provided by her advisers which would have clearly indicated which of the Section 36 exemptions she considered applied, the threshold to which they applied, and could have provided clear reasoning for the opinion. Although the Court decided it was able to infer that an opinion had been provided by the QP (based on her short email reply instead), the Court went on to find that the opinion was not a reasonable one, in part because there was no evidence that it had been based on any specific evidence, or factual or reasoned basis for concluding that such inhibition or prejudice would be likely to occur.

The ICO's template form is a helpful tool which, although not mandatory, provides clear prompts to the person completing it as to the minimum information required (ie which parts of the exemption are being relied upon, the threshold for reliance (ie 'would be likely to' or more firmly 'would') and the specific reasoned basis for doing so). The ICO also suggests it could be used as part of the submissions that a public authority's staff prepares and provides to the QP to allow them to take an informed decision. A fully-completed form recording the decision, together with an audit trail of the accompanying submission to the QP would allow the public authority to demonstrate – and produce as evidence if needed - that the Section 36 exemption was properly applied.

If you need help getting to grips with your FOIA responsibilities, our experienced team of FOIA experts can assist by providing training to staff, drafting appropriate contractual clauses and assisting with handling complex requests, complaints or legal challenges. To find out more, please contact a member of our team using the details linked above.