Application of section 36 exemption

Dear Ms Baker,

Thank you for your recent email. A reply will be sent to you as soon as
possible (where a response is required). For information, the
departmental standard for correspondence received is that responses
should be sent within 15 working days or 20 working days if you are
requesting information under the Freedom of Information Act 2000.

Your correspondence has been allocated the reference number 2009/0027404

Thank you.

Central Allocation Team

Public Communications Team

Tel: 0870 0002288
www.dcsf.gov.uk

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Dear Ms Baker,
I refer to your request for information, which was received on 23 March.
You requested information on cases where the s36 exemption was relied upon
to withhold information. I have dealt with your request under the Freedom
of Information Act 2000 ("the Act") with a response for each or your
questions.

Please can you confirm who the qualified person is who would authorise the
withholding of material under s36

The qualified person who authorises the use of the s36 exemption in this
Department is usually Sarah McCarthy-Fry who has responsibility for
Freedom of Information, although it can be any minister.

Please provide copies of any internal policies or guidance issued to
Departmental staff concerning the use of s36

The Departmental guidance on the use of s36 is:-

Section 36: Prejudice To Effective Conduct Of Public Affairs

The application of section 36 is subject to a public interest balance

Section 36 exempts information whose disclosure would be likely to have
any the following effects:

o prejudice collective Cabinet responsibility;
o inhibit the free and frank provision of advice and exchange of views
for the purposes of deliberation; or
o prejudice the effective conduct of public affairs.

Key points:

o Section 36 can only be used if, in the reasonable view of a "qualified
person", disclosure of the requested information would have one of the
specified prejudicial effects. For the Department this means our
Minister with responsibility for FOI within the Department (Sarah
McCarthy - Fry and for DIUS this is David Lammy), must decide that the
exemption applies before it can be relied on to refuse a request for
information; where this exemption is thought to apply and after
consultation with the Information Access Manager, a ministerial
submission would need to be prepared showing why the exemption is
applicable - if agreeable, the Minister would sign a statement to that
effect. The form of wording to be included as an annex to the
submission should say "I confirm that under s36 (2) of the Freedom of
Information Act 2000, the information is exempt." The statement should
be headed with the name of the enquirer and ECHO number. This signed
statement should be held by the business team in case of challenge.
o Section 36 can only be used if section 35 does not apply to the
information;

The full procedural guidance then links directly to the Ministry of
Justice website at [1]http://www.justice.gov.uk/docs/foi-exemp...

Please provide a list of FOI requests made since the creation of the
Department in June 2007 where information was withheld under s36, with
full details of who made the decision to withhold the information and the
subsection used

Statistical information about s36 and other exemptions, for each
government department, is published on the Ministry of Justice website at
[2]http://www.justice.gov.uk/docs/foi-repor... and go to
Table 5 under Performance Tables. This is an annual report relating to
2007 and the Department is shown as the Department for Education and
Skills. The statistical information in the report for 2008 is being
withheld under s22 of the Freedom of Information Act because the
information is intended for future publication in June 2009.

This is a qualified exemption and therefore we have considered the public
interest balance. The arguments for and against release have been assessed
and it is our view that the balance of public interest falls in favour of
the exemption. The public interest in permitting the government to publish
information in a manner and at a time of their own choosing is important.
It is part of the effective conduct of public affairs that the general
publication of information is a conveniently planned and managed activity
within the reasonable control of the public authority.

The report will be numerical only. Although the Department holds
information about the individual cases, the data is held only for the
process of monitoring and the production of high level statistics as shown
in the Ministry of Justice tables. To put the information requested into
the form of a list as requested would mean checking through every FOI
request received to identify if s36 has been applied and then, because we
are not required to monitor the subsections involved, contacting the
relevant business area to find out this information.

This would involve such a process of identifying, extracting and
formatting that not only would this mean creating new information but also
it is estimated that the resource required would exceed the cost threshold
applicable to central Government. This is -L-600 and represents the
estimated cost of one person spending 3 1/2 working days locating,
extracting and formatting the information. Under section 12 of the Act the
Department is therefore not obliged to comply with this part of your
request and will not be processing it further. I have considered ways in
which your request might be narrowed or limited in order to reduce the
cost of complying with it. However, due to the way in which the
information is held I do not consider that the Department would be able to
provide the information without exceeding the cost limit.

Of the cases where s36 was used, please indicate whether an internal
review was requested, who conducted that internal review, the outcome of
the review and whether the decision was appealed to the Information
Commissioner, with his decision

There have been 7 internal review cases where s36 was used. Of these, the
decision to apply s36 was upheld in 6 cases and in one case there was a
partial release of information. All independent internal reviews are
carried out by senior officials of at least Deputy Director level who were
not involved in the original request. There are 2 cases currently awaiting
decisions by the Information Commissioner.

If you have any queries about this letter, please contact me. Please
remember to quote the reference number below in any future communications.

If you are unhappy with the way your request has been handled, you should
make a complaint to the Department asking for an internal review by
writing to me within two calendar months of the date of this letter.

If you are not content with the outcome of your complaint to the
Department, you may make a complaint to the Information Commissioner's
Office

Yours sincerely,

Collin Crooks
Chief Information Officer Group
[3][email address]
[4]www.dcsf.gov.uk

Your correspondence has been allocated the reference number 2009/0027404.

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References

Visible links
1. http://www.justice.gov.uk/docs/foi-exemp...
2. http://www.justice.gov.uk/docs/foi-repor...
3. mailto:[email address]
4. http://www.dcsf.gov.uk/