Freedom of Information Exemptions, Section 36 | DISABLED ENTREPRENEUR

Written by Andrew Jones

Disclaimer: This article is intended for informational and educational purposes only and does not constitute legal advice. Laws and interpretations may change over time, and individuals seeking advice on Freedom of Information (FOI) disputes should consult a qualified legal professional or the relevant regulatory authority, such as the Information Commissioner’s Office.

When FOI Requests Are Refused, Understanding the “Free and Frank Advice” Exemption

How Section 36 of the Freedom of Information Act 2000 can be used to withhold information, and why critics argue loopholes undermine transparency in government.

The UK Parliament introduced the Freedom of Information Act 2000 (FOIA) to promote transparency and allow the public to access information held by public authorities. In principle, the legislation exists to ensure that government departments, councils, NHS bodies, and other publicly funded organisations can be held accountable for their actions.

However, the effectiveness of the Act has long been debated, particularly where exemptions allow authorities to refuse disclosure.

One of the most controversial exemptions is found under Section 36 of the Freedom of Information Act, which permits public authorities to withhold information if disclosure would, or would likely, prejudice the “effective conduct of public affairs.”

Among the reasons cited for withholding information is the argument that disclosure would inhibit the “free and frank provision of advice” or “free and frank exchange of views for deliberation.”

In simpler terms, public bodies may refuse to release information if they believe officials need a private space to discuss sensitive matters openly without fear that every email, memo, or internal discussion will later become public.

Redacted, Delayed, Withheld: Is FOI Still Fit for Purpose?

At face value, this sounds reasonable.

Governments, like businesses, need room for internal debate, policy drafting, and candid professional advice. Officials may be reluctant to speak openly if every preliminary opinion becomes public record.

The problem arises when such exemptions are relied upon too broadly.

Critics argue that Section 36 can become less about protecting honest deliberation and more about preventing embarrassment, avoiding scrutiny, or delaying accountability.

This raises a difficult question:

If legal loopholes allow public bodies to routinely avoid disclosure, is the legislation still achieving its purpose?

For many campaigners, the answer is increasingly uncertain.

When Legal Exemptions Undermine Accountability

If the law grants a right of access with one hand, but permits broad discretionary exemptions with the other, some argue the legislation risks becoming ineffective in practice, raising the uncomfortable suggestion that, in certain circumstances, parts of the law may not be worth the paper they are written on.

A recent example involves John Pring, founder and editor of Disability News Service (DNS), a respected investigative journalist known for extensive reporting on disability rights and deaths linked to welfare policy.

Following Labour’s general election victory in July 2024 and the publication of his book, the following month, ironically called “The Department”, examining years of deaths connected to the Department for Work and Pensions (DWP), Pring sought access to internal communications mentioning him.

Specifically, he requested emails from the DWP communications team that referenced him.

What followed has raised serious questions about transparency.

It reportedly took eight months for the DWP to produce heavily redacted emails in response to his access request. Those documents were only released after pro bono assistance from Mishcon de Reya and senior data protection specialist Jon Baines got involved. The article was then published by John Pring titled: “DWP hides secret ‘briefing pack’ which describes views of civil servants on call for benefit deaths inquiry” on 18th June 2026.

Yet the department later rejected disclosure of further material, citing the FOIA exemption concerning the free and frank provision of advice.

The DWP stated there was a “strong public interest” in maintaining the exemption because officials must be able to engage in:

“Open and candid internal discussion, enabling officials to fully explore issues and develop considered advice in a confidential setting.”

Justification that sits at the centre of the FOI debate.

On one side, public authorities argue that confidentiality enables better governance.

On the other hand, journalists, campaigners, and the public argue that excessive secrecy undermines trust, particularly where the subject matter concerns deaths, safeguarding failures, or policies affecting vulnerable people.

The key legal issue is not whether Section 36 should exist.

Rather, the question is whether its threshold is too subjective.

Unlike some exemptions that rely on clear statutory tests, Section 36 often depends on what a qualified person, usually a senior official or minister, reasonably believes may prejudice public affairs.

That creates room for interpretation.

And where interpretation exists, inconsistency, and potential abuse can follow.

This is where critics identify loopholes.

Common concerns include:

Broad Interpretation of Harm: Authorities may argue that almost any disclosure could chill future discussions, making the exemption easier to invoke.
Excessive Redactions: Documents may technically be released while substantial portions are blacked out, limiting meaningful scrutiny.
Delayed Responses: Even when disclosure eventually occurs, prolonged delays can reduce the practical value of the information.
Power Imbalance: Ordinary citizens often lack the resources to challenge refusals through tribunals or judicial review.

This creates a wider constitutional concern.

Transparency laws are only as effective as their enforcement.

A right that exists on paper but is difficult, costly, or slow to exercise may offer little practical protection.

For disabled people and vulnerable communities, this issue can be especially significant.

When policies involving welfare reform, sanctions, benefit assessments, or safeguarding are developed behind closed doors, a lack of transparency can fuel mistrust, particularly where lives, livelihoods, and health are affected.

The Public Interest Test

The public interest test should therefore remain central

Where disclosure could expose wrongdoing, reveal systemic failings, or inform democratic debate, many legal commentators argue secrecy should be the exception, not the default.

Freedom of information laws were designed to shine light into public institutions.

When exemptions become overly broad, that light begins to dim.

The challenge for lawmakers, regulators, and courts is ensuring that legitimate confidentiality does not become a convenient shield against accountability.

In a democratic society, transparency is not merely administrative housekeeping.

It is a safeguard against abuse of power.

When governments ask citizens to trust them, openness is often the strongest foundation for that trust.

Without it, public confidence can quickly erode.

Conclusion

Section 36 of the Freedom of Information Act 2000 is one of those provisions that often attracts criticism precisely because it is so discretionary. Unlike some exemptions with clearer thresholds, Section 36 relies heavily on what a qualified person reasonably believes could prejudice the effective conduct of public affairs. That leaves considerable room for interpretation.

Reform usually happens when three things align:

Public awareness grows: more journalists, campaigners, and ordinary citizens begin noticing patterns of refusal.
Pressure builds through case law and tribunal decisions: decisions from the Information Commissioner’s Office or courts can expose overuse or misuse.
Political appetite emerges: MPs or parliamentary committees decide the exemption is too broad or being abused.

Discussion Creates Scrutiny

Many legal reforms began because people kept raising uncomfortable questions. The law often changes not because institutions volunteer reform, but because public pressure makes inaction harder to justify.

One area reformers might target is introducing a stricter public interest balancing test for Section 36, for example, requiring stronger evidence of actual harm rather than speculative claims that disclosure might inhibit future advice.

Another possibility would be tighter rules on redactions and delay, because sometimes the problem is not outright refusal but death by delay, documents arriving so late that meaningful scrutiny is weakened.

The broader point is compelling: if exemptions become too easy to invoke, transparency risks becoming symbolic rather than real.

That is why articles like this matter. They encourage readers to ask not just “What does the law say?” but also “Is the law working as Parliament intended?”

“Sometimes reform starts with exactly that conversation”.

www.First4Lawyers.com

Andrew Jones

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Andrew Jones is a seasoned journalist renowned for his expertise in current affairs, politics, economics and health reporting. With a career spanning over two decades, he has established himself as a trusted voice in the field, providing insightful analysis and thought-provoking commentary on some of the most pressing issues of our time.