functions whenever they are absent, or those powers and functions could be formally delegated to the alternative person as the need arises. Provided there is a formal delegation of some sort then the alternative person is truly ‘standing in the shoes’ of the absent post holder and so they can act as the qualified person. This is different from a situation where the post holder who is the qualified person is absent and someone else is simply covering part of their work, such as attending meetings or replying to correspondence but without having the powers and functions of the post formally delegated to them. In that situation the other person is not the qualified person. While it is the qualified person who must give the required opinion, someone else in the authority, eg the authority’s freedom of information officer, may carry out the preparatory work leading up to the decision, for example assembling the evidence and summarising the arguments. Qualified person’s opinion is needed to engage the exemption The qualified person is required to give a reasonable opinion about the likelihood of prejudice or inhibition under section 36(2). The qualified person’s opinion is crucial in order to engage the exemption. If the opinion is not given by the appropriate person, then the exemption cannot apply. As section 36 is a qualified exemption, the public authority may, if necessary, under section 10(3), extend the 20 day time limit in order to consider the balance of public interest, but they must still, under section 17(1), inform the requestor within 20 days that section 36 is engaged and why. Section 36 can only be engaged when the qualified person has given their opinion. This means that the public authority should obtain that opinion within 20 days before they can extend the time limit to consider the public interest test. However, section 36 can still be engaged if the qualified person gives their reasonable opinion by the completion of the internal review (see below under ). Therefore, public authorities wishing to apply section 36 should identify who their qualified person is and obtain their opinion in good time in order to carry out the public interest test.
functions whenever they are absent, or those powers and functions could be formally delegated to the alternative person as the need arises. Provided there is a formal delegation of some sort then the alternative person is truly ‘standing in the shoes’ of the absent post holder and so they can act as the qualified person. This is different from a situation where the post holder who is the qualified person is absent and someone else is simply covering part of their work, such as attending meetings or replying to correspondence but without having the powers and functions of the post formally delegated to them. In that situation the other person is not the qualified person. While it is the qualified person who must give the required opinion, someone else in the authority, eg the authority’s freedom of information officer, may carry out the preparatory work leading up to the decision, for example assembling the evidence and summarising the arguments. Qualified person’s opinion is needed to engage the exemption The qualified person is required to give a reasonable opinion about the likelihood of prejudice or inhibition under section 36(2). The qualified person’s opinion is crucial in order to engage the exemption. If the opinion is not given by the appropriate person, then the exemption cannot apply. As section 36 is a qualified exemption, the public authority may, if necessary, under section 10(3), extend the 20 day time limit in order to consider the balance of public interest, but they must still, under section 17(1), inform the requestor within 20 days that section 36 is engaged and why. Section 36 can only be engaged when the qualified person has given their opinion. This means that the public authority should obtain that opinion within 20 days before they can extend the time limit to consider the public interest test. However, section 36 can still be engaged if the qualified person gives their reasonable opinion by the completion of the internal review (see below under ). Therefore, public authorities wishing to apply section 36 should identify who their qualified person is and obtain their opinion in good time in order to carry out the public interest test.
prejudice-to-the-effective-conduct-of-public-affairs-section-36.docx