0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

FOI requests and the use of the section 36 exemption

17 July 2019

As schools and academies you get plenty of Freedom of Information (FOI) requests. When you answer them you are effectively publishing the information to the world. Sometimes you need to avoid publishing the information, because to do so, could hamper the debate or decision-making on a particular live issue. As you know, there are a number of exemptions under the FOI Act and for this example the best fit will be the one found in Section 36.

The Section 36 exemption applies where releasing the information would cause “prejudice to the effective conduct of public affairs”. You can seek to apply it where disclosure of the information sought “would or would be likely to inhibit the free and frank provision of advice or … exchange of views for the purposes of deliberation” or would “otherwise prejudice the effective conduct of public affairs”.

As you can see, it could apply in a number of cases. Here are a couple of examples to give you context:

  • a maintained school governing body meets to discuss whether to propose becoming an Academy. There are notes made in the meeting and a FOI request is made to see them. Sharing the notes this early may well inhibit free and frank discussion because the governing body may then be concerned that what they say in the meeting may become public.
  • a school or academy is considering finishing early on a Friday to help with budgetary constraints. Releasing the notes of those discussions may also inhibit free and frank discussion for the same reason as above.

If you want to reply on this exemption you require the qualified person for your organisation to give their 'reasonable opinion' why they consider the exemption is engaged. The qualified person for maintained schools is the Chair of the Governing Body and for Academies it is the Chair of the Board of Directors of the proprietor of the Academy.

The Section 36 exemption requires detailed consideration and sometimes you may want to chat that through with us. That’s exactly what we are here for.

focus on...

Legal updates

British Airways £183m data breach fine – should schools be worried?

In a word (or three) no, not really. Before we get overexcited about BA’s hefty fine, let’s put it in perspective and remember that for the moment it is the Information Commissioner’s Office intention to levy this fine – BA will now make representations about it.


Legal updates

be connected newsletter for education - July 2019

As we approach the final few days of the school term, this edition of BeConnected provides you with the latest in legal updates, news and insight from the sector.


Legal updates

Schools and Raising Money for Charities

Traditionally there are many ways for schools to raise money for charity: bake sales, non-uniform days and throwing wet sponges at teachers.


Legal updates

be connected newsletter for education - December 2018

In this edition we will connect you with a comprehensive selection of the very latest in legal updates, news and insight from the education sector.


The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up

Select which mailings you would like to receive from us.

Sign up