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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.

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