Beacon Counselling Trust v The Information Commissioner & Anor
NCN: [2026] UKFTT 00555 (GRC)
Case Reference: FT/EA/2025/0072
First-tier Tribunal
General Regulatory Chamber
Information Rights
Heard: on the papers
Heard on: 18 September 2025
Decision given on: 14 April 2026
Before
TRIBUNAL MEMBER PALMER-DUNK
TRIBUNAL MEMBER YATES
Between
BEACON COUNSELLING TRUST
Appellant
and
THE INFORMATION COMMISSIONER
LEEDS AND YORK PARTNERSHIP NHS FOUNDATION TRUST
Respondents
Representation:
The Appellant: Stevens & Bolton LLP
The First Respondent: Information Commissioner’s Office
Decision:
The appeal is ALLOWED.
Substituted Decision Notice:
Within 35 days of the date of promulgation of this judgment to the parties, Leeds and York Partnership NHS Foundation Trust must send to the Appellant the information withheld by the Leeds and York Partnership NHS Foundation Trust as referred to in paragraphs 63 and 64 of the Decision Notice of the Information Commissioner referenced IC-327716-R6B8, dated 3 January 2025.
REASONS
Introduction to the Appeal
On 23 May 2024, the Appellant submitted a request (“the Request”) to the Leeds and York Partnership NHS Foundation Trust (“the Trust”) for copies of correspondence making reference to the Appellant, which had been sent to or from a named person at the Trust from 1 February 2023 to the date of the Request.
The Trust refused to provide the requested information, in reliance on s36 of the Freedom of Information Act 2000 (“FOIA”) (prejudice to the effective conduct of public affairs).
By Decision Notice, referenced IC-327716-R6B8, dated 3 January 2025, the Respondent (“the Commissioner”) decided that the Trust should disclose some but not all of the requested information: section 36(2)(c) was not engaged at all; Sections 36(2)(b)(i) and 36(2)(b)(ii) were engaged, but the public interest favoured disclosure, save in relation to an item of email correspondence and an attached draft document which are the subject of this appeal (“the Withheld Information”).
We had before us an OPEN bundle and a CLOSED bundle which contained the Withheld Information.
The Tribunal gives its decision in this single, OPEN judgment.
The Tribunal’s decision is unanimous.
The Request
On 23 May 2024, the Appellant made this request of the Trust (“the Request”):
“Please provide copies of all correspondence making reference to BCT that has been sent to or from [named person] from 1 February 2023 to date. “Reference to BCT” shall for these purposes include reference or links to any BCT employees and the National Gambling Support Network.”
Reference to BCT is to the Appellant.
The individual whose name we have substituted with “[named person]” works, or worked at the material time, at the Trust.
On 3 June 2024, the Trust refused the Request. The Trust said this:
“As disclosure of this information would have an inhibiting effect on similar communications in the future and would also undermine the work and effectiveness of investigations into the wider impacts of gambling harms, which may hinder our ability to help people in the future, it is therefore our opinion that it would be improper to release any such correspondence.
It is the opinion of our Chief Executive, Dr Sara Munro, that it is eminently reasonable that our Trust allows the free and frank exchange of views for the purposes of deliberation to take place in confidence, and that our Trust is seen to do so. As such, it would be improper to release information that would undermine this process.
We therefore withhold provision of such correspondence on the grounds that, under the terms of the Freedom of Information Act 2000, this is exempt under Section 36:- 36(2) b (i) and b (ii) and c as it is the reasonable opinion of our qualified person that a public authority shall not disclose information which;
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.
The public interest weighs in favour of a reasonable expectation that any free and frank discussions are withheld from disclosure, as it is likely that disclosure of the requested information would inhibit such future frankness and candour and that this would hinder the sharing of knowledge and lead to poorer decision making.
There is a clear public interest in engaging in discussions which raise awareness and further examine the wider impact of the devastating effects of gambling disorder and inhibiting the ability of our staff and others to express themselves openly and honestly when providing advice and sharing their views would potentially impair our ability to offer future advice and support for people affected by gambling harms and families bereaved by gambling-related suicides. We consider that the public interest is best served by preventing those consequences.”
On 18 June 2024, the Appellant requested an internal review.
On 10 July 2024, the Trust maintained its position on internal review. The Trust said that in arriving at its decision to apply the exemption afforded by s36(2)(b)(i) and (ii) FOIA, it had obtained the opinion of the Trust’s Chief Executive, Dr Sara Munro, as the requisite Qualified Person for the purposes of s36 FOIA (“the Qualified Person”), and that the Trust regarded her opinion as a valid and reasonable view.
The Appellant complained to the Commissioner. The Commissioner investigated.
During his investigation, the Commissioner asked the Trust to provide a copy of the opinion provided by the Qualified Person, and any submissions which were provided to the Qualified Person for the purpose of seeking her opinion. We address those items in detail in our Analysis below.
The Decision Notice
By the Decision Notice, the Commissioner decided in relation to the Withheld Information that:
S36(2)(b)(i) and (ii) FOIA were engaged.
The Commissioner was prepared to accept that the Qualified Person gave an opinion in that she was provided by a member of staff with a draft letter of refusal addressed to the Appellant, and that she explicitly approved it.
The Trust’s refusal referred to the Trust’s opinion (“our opinion”) that disclosure would have an inhibiting effect on similar communications in the future and would also undermine the work and effectiveness of investigations into the wider impacts of gambling harms, which may hinder the Trust’s ability to help people in the future, and that it would, therefore, be improper to release such correspondence. The Commissioner did not accept that that opinion was the opinion of the Qualified Person.
Rather, the articulation of the Qualified Person’s opinion was limited to that which was expressly attributed to her in the Trust’s refusal: “It is the opinion of our Chief Executive, Dr Sara Munro, that it is eminently reasonable that our Trust allows the free and frank exchange of views for the purposes of deliberation to take place in confidence, and that our Trust is seen to do so. As such, it would be improper to release information that would undermine this process.”
The Qualified Person’s opinion is that disclosing the information would inhibit the free and frank provision of advice, inhibit the free and frank exchange of views for the purposes of deliberation and otherwise prejudice the effective conduct of public affairs. No reasoning was provided by the Qualified Person for believing this to be the case, other than that disclosure “would undermine this process.”
When deciding whether such an opinion is reasonable, the Commissioner must not substitute his own opinion for that of the Qualified Person. The Qualified Person’s opinion does not have to be the most reasonable opinion available, simply an opinion which a reasonable person might hold. The opinion only needs to be reasonable on its face. The public authority need not demonstrate that the opinion has also been reasonably arrived at. An opinion will not be reasonable if it is irrational, absurd or if it fails to identify an applicable interest.
In respect of inhibition, the Commissioner does not consider it unreasonable to suppose that staff may feel some inhibition in future if they are concerned that their correspondence will become public. That concern will be well-grounded if the contents of their previous correspondence have been published. Whilst the Commissioner is sceptical that this inhibition will be severe, he recognises that it is not irrational to think that some inhibition might occur.
It is not clear from the Qualified Person’s opinion what her assessment of the likelihood of the inhibition occurring was. The Commissioner has reached the view that it is the lower bar of “would be likely to” cause inhibition: “The senders of the emails concerned are people who hold important roles within their respective organisations and should therefore be robust individuals. The Commissioner considers it reasonable to believe that there is a small chance of inhibition, but he does not consider it reasonable to suppose that this is more likely than not to occur.”
The Commissioner concluded that “these parts of the exemption are therefore engaged.”
The Commissioner decided that s36(2)(c) FOIA (disclosure "otherwise” prejudicing the effective conduct of public affairs) was not engaged; the Qualified Person had not identified a harm that would result from disclosure which would not be covered by the other parts of s36 FOIA: “As the qualified person has failed to identify an applicable interest that could be harmed, let alone explain why that would result from disclosure or how likely it would be, the Commissioner cannot accept this part of her opinion as reasonable. Consequently disclosure would not “otherwise” prejudice the effective conduct of public affairs.”
However, save in relation to the Withheld Information, the public interest in maintaining the exemption from disclosure was not outweighed by the public interest in disclosure. Disclosure must prevail.
As for the Withheld Information:
There is one exception: one of the email chains attaches a draft agreement between various parties. It is not clear whether this even resulted in an agreement, let alone whether the final agreement closely reflected the draft.
The Commissioner accepts that the public interest favours maintaining the exemption in relation to this document. The document was a draft and the Commissioner accepts that disclosing it would have intruded on the safe space that officials required in order to develop policy options. It would also have risked putting a misleading document into the public domain, confusing people (and particularly people in vulnerable situations) as to what had been agreed. This document can therefore be withheld.”
The Appeal
By Notice of Appeal dated 29 January 2025, the Appellant submits, in summary, that:
The public interest favours disclosure of the Withheld Information: contractual arrangements between the Trust and its gambling harms partners are key to the public being able to understand how the Trust (and for that matter other NHS trusts more generally) refers patients to specific organisations and whether that process is in line with NHS England central themes and guidelines.
The Appellant expects any relevant contractual arrangements to follow such themes and guidelines, and that they should not create a preferential referral process with the contract counterparty or preclude referrals to other partners: “There is serious concern in the sector that [the Trust] and other NHS trusts are deliberately seeking to avoid referring patients to BCT and other voluntary, private, and charitable support sector providers, and it must be in the public interest to have sight of any documentation that sets out the basis (whether draft or executed final version) on which an NHS trust will refer patients to a particular provider or set of providers.”
The Appellant understands that the Withheld Information sets out a proposed contractual basis for patient referrals. The Appellant acknowledges that the document referred to in paragraphs 63 and 64 of the Decision Notice is a draft agreement but it is the disclosure of the intention demonstrated in that document which is important from a public interest perspective and whether it and its accompanying email chain demonstrate the approach taken or intended to be taken by the Trust to gambling harm referrals.
By Response to the appeal dated 24 February 2025, the Commissioner submits, in summary, that:
The appeal should be dismissed for the reasons given in the Decision Notice.
There is simply insufficient public interest in the Withheld Information to override the public interest in maintaining the exemptions for the reasons set out in the Decision Notice.
The Appellant’s grounds do not identify any error of law in the Decision Notice or any incorrect exercise of the Commissioner’s discretion.
By Reply to the Commissioner’s Response to the appeal dated 10 March 2025, the Appellant submits, in summary, that:
The public interest favours disclosure.
The opinion of the Trust’s Qualified Person is not aimed specifically at the Withheld Information, but more generally at the correspondence which is the subject of the Request. It is difficult to see how the potential harms which s36(2)(b)(i) and (ii) FOIA are intended to engage have been identified by the Qualified Person or how they are likely to arise from disclosure.
The legal framework
The relevant provisions of FOIA are as follows:
Section 1
General right of access to information held by public authorities.
Any person making a request for information to a public authority is entitled-
To be informed in writing by the public authority whether it holds
information of the description specified in the request, andIf that is the case, to have that information communicated to him.
...
Section 2
Effect of the exemptions in Part II
…
In respect of any information which is exempt information by virtue of any
provision of Part II, section 1(1)(b) does not apply if or to the extent that-The information is exempt information by virtue of a provision conferring absolute exemption, or
In all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
…
Section 36 FOIA provides as follows:
Prejudice to effective conduct of public affairs
…
Information to which this section applies is exempt information if, in the
reasonable opinion of a qualified person, disclosure of the information under this Act-…
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, orwould otherwise prejudice, or would be likely otherwise to prejudice,
the effective conduct of public affairs.Section 36(2) FOIA is subject to a public interest test which is found at s2(2)(b) FOIA: “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”
Relevantly for current purposes: S36(5)(o) FOIA defines a qualified person as any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown.
Section 58 FOIA provides as follows:
Section 58
Determination of appeals
If on an appeal under section 57 the Tribunal considers-
that the notice against which the appeal is brought is not in
accordance with the law, orto the extent that the notice involved an exercise of discretion by
the Commissioner, that he ought to have exercised his discretion differently,the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
On such an appeal, the Tribunal may review any finding of fact on which the
notice in question was based.The import of section 58 is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the FOIA Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. In accordance with the recent decision of the Upper Tribunal in Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC), at [86], “the public authority is not to be judged on the balance of competing interests on how matters stand other than at the time of the decision on the request which it has been obliged by Part 1 of FOIA to make.”
Analysis
The Upper Tribunal identified several principles to be followed in s36 FOIA cases in IC v Malnick [2018] AACR 29:
... although the opinion of the QP is not conclusive as to prejudice (save, by virtue of section 36(7), in relation to the Houses of Parliament), it is to be afforded a measure of respect.
...
... a decision whether information is exempt under that section involves two stages: first, there is the threshold in section 36 of whether there is a reasonable opinion of the QP that any of the listed prejudice or inhibition (“prejudice”) would or would be likely to occur; second, which only arises if the threshold is passed, whether in all the circumstances of the case the public interest in maintaining the exemption outweighs the public interest in disclosing it.
... The threshold question is concerned only with whether the opinion of the QP as to prejudice is reasonable. The public interest is only relevant at the second stage, once the threshold has been crossed.
Given the clear structural separation of the two stages, it would be an error for a tribunal to consider matters of public interest at the threshold stage. ...”
Opinion of the Qualified Person
We were shown nothing by way of material generated by the Trust to confirm Dr Munro’s appointment as the Qualified Person. The Commissioner accepted that Dr Munro was that person for the purposes of the Request. The Appellant does not dispute it. We accept that Dr Munro was the Qualified Person.
The Tribunal’s role is to decide whether the opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur.
In IC v Malnick and ACOBA [2018] AACR 29 the Upper Tribunal determined as follows:
The starting point must be that the proper approach to deciding whether the QP’s opinion is reasonable is informed by the nature of the exercise to be performed by the QP and the structure of section 36.
In particular, it is clear that Parliament has chosen to confer responsibility on the QP for making the primary (albeit initial) judgment as to prejudice. Only those persons listed in section 36(5) may be QPs. They are all people who hold senior roles in their public authorities and so are well placed to make that judgment, which requires knowledge of the workings of the authority, the possible consequences of disclosure and the ways in which prejudice may occur. It follows that, although the opinion of the QP is not conclusive as to prejudice (save, by virtue of section 36(7), in relation to the Houses of Parliament), it is to be afforded a measure of respect. As Lloyd Jones LJ held in Department for Work and Pensions v Information Commissioner
(at paragraph 55):“It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of balancing competing public interests under section 36. No doubt the weight which is given to this consideration will reflect the tribunal’s own assessment of the matters to which the opinion relates.”
…
The information tribunal in Guardian Newspapers and Brooke then went on to set out how the question of “reasonable opinion” should be approached under section 36(2). It said:
The first condition for the application of the exemption is not the Commissioner’s or the tribunal’s opinion on the likelihood of inhibition, but the qualified person’s “reasonable opinion”. If the opinion is reasonable, the Commissioner should not under section 36 substitute his own view for that of the qualified person. Nor should the tribunal.
On the wording of section 36(2) we have no doubt that in order to satisfy the statutory wording the substance of the opinion must be objectively reasonable We do not favour substituting for the phrase “reasonable opinion” some different explanatory phrase, such as “an opinion within the range of reasonable opinions”. The present context is not like the valuation of a building or other asset, where a range of reasonable values may be given by competent valuers acting carefully. The qualified person must take a view on whether there either is or is not the requisite degree of likelihood of inhibition. We do, however, acknowledge the thought that lies behind the reference to a range of reasonable opinions, which is that on such matters there may (depending on the particular facts) be room for conflicting opinions, both of which are reasonable.”
All parties before us agreed that, when the tribunal is considering the substance of the QP’s opinion, this passage sets out the correct approach.
However, the information tribunal in Guardian Newspapers and Brooke went on to find that an opinion must be judged not only with regard to its substantive reasonableness but also as to its procedural reasonableness. It said:
On this point we consider that the Commissioner is right, and that in order to satisfy the sub-section the opinion must be both reasonable in substance and reasonably arrived at. We derive this conclusion from the scheme of the Act and the tenor of section 36, which is that the general right of access to information granted by s 1 of the Act is only excluded in defined circumstances and on substantial grounds. The provision that the exemption is only engaged where a qualified person is of the reasonable opinion required by section 36 is a protection which relies on the good faith and proper exercise of judgment of that person. That protection would be reduced if the qualified person were not required by law to give proper rational consideration to the formation of the opinion, taking into account only relevant matters and ignoring irrelevant matters. In consideration of the special status which the Act affords to the opinion of qualified persons, they should be expected at least to direct their minds appropriately to the right matters and disregard irrelevant matters. Moreover, precisely because the opinion is essentially a judgment call on what might happen in the future, on which people may disagree, if the process were not taken into account, in many cases the reasonableness of the opinion would be effectively unchallengeable; we cannot think that that was the Parliamentary intention.”
We acknowledge that the views expressed in that passage have found general if not universal support in decisions of other F-tTs (but for dissenting F-tT voices on this point, see e.g. Roberts v Information Commissioner (EA/2013/0059 at paragraph 6) and also Montague v Information Commissioner (EA/2014/0040 at paragraph 48)). As we have explained, those expressions of view either way are not binding on us or on anyone other than the parties to those appeals, and in any event we have had the advantage of full argument from counsel. There is no UT authority on the point in issue.
Mr Waterman pointed out that the Commissioner’s position in this appeal is inconsistent with that in Guardian Newspapers and Brooke and other F-tT cases. However, the Commissioner’s approach cannot be relevant to the issue of construction which we have to decide. In any event Mr Lockley readily admitted to us that the Commissioner had changed her position since Guardian Newspapers and Brooke, with the benefit of the experience of seeing how the section 36 test had played out in practice. She now took a more flexible approach and was concerned that the Guardian Newspapers and Brooke test could result in the correct outcome under section 36 being vitiated by a purely technical error. She therefore encouraged us to adopt an approach which focussed on substantive reasonableness as the test. Mr Lockley acknowledged that an opinion which had been arrived at by way of an unreasonable process might be, but was not automatically or necessarily, also substantively unreasonable.
52.We agree that one only has to pause to think through the consequences of the approach adumbrated in paragraph 64 of Guardian Newspapers and Brooke (set out above) to realise that it cannot be right. If a defect in the process by which the opinion was reached would mean that the opinion was not reasonable, the result would be that information would have to be disclosed even though the opinion appears to be correct in substance and where the consequences of disclosure would be very serious prejudice within section 36(2) and where there was no sufficient countervailing public interest in disclosure. Such an outcome militates against the purpose of FOIA which is concerned with matters of substance not process. We agree with Ms Stout that Parliament cannot have intended that a procedural failing could of itself prevent the public authority from successfully protecting the public interests encompassed by section 36.
53.We also agree with Ms Stout that importing procedural requirements in relation to the QP’s opinion at the gateway stage, with the result that an opinion which is in substance reasonable may yet be found to be unreasonable because of a procedural failing, may lead to other bizarre and unintended consequences.
54.First, it would mean that the decision-making process requirements are more demanding at the initial gateway stage than they are at the substantive stage of considering the public interest balancing test. Yet given that all relevant interests are protected by the full merits determination required in applying the public interest balancing test, it makes little sense to have a more rigorous procedural test at the initial stage.
Second, Parliament has plainly decided that the threshold question is a matter for the QP. If, however, a procedural error prevents a public authority from relying on section 36, then (absent any other exemption applying) the disputed information must be disclosed, whatever the potential prejudice. By contrast, in a conventional judicial review scenario, the quashing of a public authority’s decision for procedural error would have typically resulted in it being allowed to take the decision again.
For these reasons, we conclude that “reasonable” in section 36(2) means substantively reasonable and not procedurally reasonable.”
What we must decide is whether the Qualified Person's opinion in this case was substantively reasonable. Any procedural flaw in its being reached which might otherwise render it unlawful in public law terms is irrelevant to the assessment of its reasonableness.
Analysis of the process by which the opinion attributed to the Qualified Person was elicited reveals this: at 15:57 on 29 May 2024, the Trust’s Information Governance Support officer sent an email to the Qualified Person saying:
“Sorry to bother you again – we’ve had an FOI request about our Gambling Service ([named person] is once again the target).
With aims to keep our responses consistent, I’ve drafted a response based along the lines of a previous response that was sent a while ago.
Please could you approve the attached as an appropriate response?”
That which we have quoted above is the full extent of the submission to the Qualified Person.
The Trust’s officer attached to their email a draft response to the Request (identical to the response which was issued in due course) but did not provide the Request itself or any of the requested information, including the Withheld Information.
At 10:57 on 30 May 2024, the Qualified Person responded by email to the Trust’s officer saying only this:
“Thanks [name redacted] – happy for this to go out.”
Having reviewed the exchange between the Qualified Person and the Trust’s officer which we have just set out, the Commissioner decided that the Qualified Person was provided with a recommended “opinion”, and she explicitly approved it, thereby providing an opinion. The Commissioner considered that opinion to be substantively reasonable.
We disagree.
For the reasons which follow, we do not consider that the Qualified Person has provided a substantively reasonable opinion within the meaning of s36(2) FOIA.
The Qualified Person was neither shown nor given any meaningful description of the information, which was the subject of the Request, including the Withheld Information which is the subject of this appeal.
We accept that the Qualified Person was shown the Request as it was set out in the draft refusal letter she was asked to approve, and also the reasoning for refusing the Request which the Trust’s officer was proposing to supply as set out in the draft letter. However, all the Qualified Person was told was that the Request related to “our gambling service” and that a person at the Trust, whose name was provided to the Qualified Person, was “once again the target”.
We note that the Trust’s officer told the Qualified Person that the Trust was aiming to keep its responses “consistent” and that the draft response the Qualified Person was being asked to consider was “along the lines of a previous response that was sent a while ago”. However, without provision to the Qualified Person of the previous response referred to and the request which generated it together with the requested underlying information, there is nothing to suggest that the Qualified Person could have formed any opinion about the likely effect of disclosure of the Withheld Information by reference to that historic request.
On the material before us, there is no evidence that the Qualified Person sought any further information about, or better understanding of, the Request. It appears that the Qualified Person was incurious.
By expressly authorising the Trust to respond to the Request by stating that it was the Qualified Person’s opinion in her capacity as Chief Executive of the Trust that the requested information, if disclosed, would undermine the free and frank exchange of views for the purposes of deliberation, the Qualified Person was, in our view, agreeing that that should be held out as her opinion.
However, it does not seem to us that the Qualified Person could properly have formed, even by adoption of the recommendation to her, any opinion as to whether disclosure of any of the requested information, including the Withheld Information, would, or would be likely to, engage any part of s36 FOIA, without having had sight or knowledge of that information. In our view, the limited information provided to the Qualified Person was insufficient to enable her to form any opinion. We do not accept that a Qualified Person can opine on the likely consequences of disclosure of specified information without any knowledge of what that information is. We accept that knowledge of a description of the information, rather than the information itself, may suffice, subject to the level of detail in that description, but there was no adequate description in this case, simply a statement that the Request related to the Trust’s gambling service and that a named person was “the target”.
There is no evidence before us which suggests that the Qualified Person had such a clear recollection of the detail of the historic request and the issues it raised, that she might correctly have assumed that the Request and the issues it raised were so similar to those raised by the historic request, that she felt she need not ask for any further information about the Request.
Section 36 FOIA is unique amongst the FOIA exemptions for making the reasonable opinion of a particular person determinative of its operation. Parliament has entrusted to a person at the highest level of accountability in a public authority, the responsibility of understanding what is being requested and, on the basis of that understanding, to form an opinion as to whether disclosure of that information would, or would be likely, to engage any of the prejudices anticipated by s36 FOIA. That opinion, in turn, informs the public authority’s response to the requester.
Moreover, the Qualified Person’s opinion resonates beyond the issue of whether s36 FOIA is engaged. Although the Qualified Person does not opine on the balance of the public interest in maintaining the exemption from disclosure on the one hand, and the public interest in disclosure on the other, their opinion nevertheless falls to be considered in that exercise. In that context, their opinion has weight.
Both the Commissioner and the Tribunal afford a measure of respect to the opinion of the Qualified Person, reflecting the institutional competence of the Qualified Person (see IC v Malnick [2018] AACR 29 [29] quoted above).
As the Commissioner noted in the Decision Notice in this case: “Section 36 places considerable power into the hands of the qualified person and the Commissioner is required to give their opinion a much greater margin of appreciation than he would for most other submissions.” [26].
It is not unusual for a public authority to present a submission to a Qualified Person attaching or explaining what the requested information is and suggesting the issues which the Qualified Person may wish to consider. Sometimes, the public authority gives the Qualified Person a very strong steer or an express recommendation. There is, in principle, no difficulty with that provided that the Qualified Person understands what the requested information is or concerns.
The Qualified Person cannot delegate their opinion. FOIA requires their opinion. It cannot be right that the Qualified Person simply "rubber-stamps" a public authority’s proposed response which seeks to rely on s36 FOIA, without any real understanding of what the withheld information is and, consequently, the likely impact of its disclosure. To do so is, in our view, to disregard both the letter and the spirit of FOIA, and to abuse the privilege and responsibility of the Qualified Person function.
We accept that the Qualified Person’s opinion need only be substantively reasonable, and it is not for us to reject it based on any procedural flaw in its production. However, in this case, we consider that the issues we have identified go significantly beyond procedural flaws. The Qualified Person cannot, in any real sense, be said to have formed or issued any opinion, and certainly not that presented in the Trust’s refusal of the Request. On that basis, we cannot accept that the Qualified Person’s opinion, as presented by the Trust, was substantively reasonable.
Accordingly, we are unable to find that s36(2)(b)(i) or (ii) FOIA is engaged in relation to the Withheld Information. It is not, therefore, necessary for us to consider whether the public interest in maintaining the exemption is outweighed by the public interest in disclosure.
Personal Data
The Withheld Information contains data relating to and identifying a number of individuals. Upon enquiry by the Tribunal of the Trust as to this data, the Trust has confirmed to the Tribunal and the parties that it does not consider that data to be personal data and it does not, therefore, seek to rely on s40(2) FOIA to withhold that data.
The Trust says:
“The rationale for this view is that [the data] is 2-fold, specifically:-
· an e-mail to persons working in partner organisations in their professional roles, identified as such only by their work e-mail addresses and first names / surnames, and
· the proposed MoU draft
Neither of these nor the CLOSED bundle as a whole contain personal data relating to service users / patients under the care of the service.”
It is not obvious to us that the data in question is not personal data, but we note nonetheless that the Trust does not seek to exempt it from disclosure pursuant to s40(2) FOIA or otherwise, so we do not address this issue further.
Conclusion
We find that the Commissioner erred in concluding that the Trust was entitled to refuse to disclose the Withheld Information in reliance on s36(2)(b)(i) or (ii) FOIA.
To that extent, the Decision Notice is not in accordance with the law.
Accordingly, the appeal must be Allowed.