Section 36: Record of the qualified person’s opinion
Latest updates - 5 January 2023
The guidance has been amended to reflect that the pro-forma can also be used to guide you through the process of seeking the qualified person’s opinion as well recording their decision.
The form has been amended to include s36(3) neither confirm nor deny provision.
The introductory content has been placed on a webpage rather than on the form itself.
When the ICO deals with a complaint about your application of section 36, we expect to see evidence that the qualified person gave their opinion that the exemption is engaged. We need to understand the grounds on which their opinion was based to decide whether it was a reasonable one. This form sets out the minimum information that we expect you to provide to us.
The form is a convenient way for you to give us the information we need, but there’s no statutory requirement to use it. You can choose to send us other documents that record the same, or more detailed, information about the qualified person’s opinion. Remember, the onus is on you to:
- show that an opinion was obtained
- demonstrate that it is reasonable, and
- provide as much information as you can to support the application of the exemption.
You can also use the form when applying section 36. It can help steer you through the process and ensure you record the necessary information.
Please see the notes at the end to help you complete the form. For further information on section 36, please see our guidance.
The form records only the qualified person’s opinion that the exemption is engaged (ie that disclosure of the information would or would be likely to cause prejudice or inhibition). Once the qualified person has given their opinion, you must then carry out the public interest test. It is good practice to keep a record of the factors you considered in the public interest test as well as its outcome.