“Please provide copies of all correspondence making reference to BCT that has been sent to or from [named person] from1 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.”
“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 theFreedom 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; (b) would, or would be likely to, inhibit— (i) the free and frank provision of advice; or (ii) the free and frank exchange of views for the purposes of deliberation; or (c) 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.”
“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.” e. 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.” f. 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. g. 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. h. 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.” i. The Commissioner concluded that “these parts of the exemption are therefore engaged.” j. 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.” k. 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. l. As for the Withheld Information: “63. 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. 64. 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.”
“in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”
“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. ... 31. ... 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. 32. ... 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. 33. 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. ...”
“28. 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. 29. 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[2016] EWCA Civ 758 (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.” … 47. 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: “54. 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”
“64. 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.” 50. 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. 51. 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. 55. 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. 56. For these reasons, we conclude that “reasonable” in section 36(2) means substantively reasonable and not procedurally reasonable.” “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.” … “54. 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”
“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?”
“Thanks [name redacted] – happy for this to go out.”
“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.”