The Exemption Index – FOI Sections 23, 24 & 25

Exemption Index logoFOIMan goes undercover to examine the FOI exemptions designed to protect national security.

Summary

Extract from the leaked script to the next Bond film:

Evil henchman: shall I torture 007 a little more?

Evil head honcho: no, there’s no need for that. You’re getting blood on the carpet. * tuts *

007: I won’t talk you know!

Evil head honcho: I don’t need you to, Mr Bond. I’m just writing this FOI request to the foreign office. You’ll find your M will squawk like a canary faced with the power of whatdotheyknow.com!

Bond: You’re twisted! What kind of sick mind would make a freedom of information request anyway?

Bond, as we know, is fiction. Anyone seeking information on national security matters is unlikely to get very much as a result of an FOI request. They are protected by 0023 and 0024, twins working together to protect the British State. And if they get into trouble, there’s always M to back them up – the Ministerial Certificate that can be issued under section 25 of the Act.

Information affected

Any information directly or indirectly supplied to a public authority by a security body listed at s.23(3) of the Act, or any information relating to those bodies, is subject to the section 23 exemption. If information not falling within s.23 is required to be withheld for the purpose of safeguarding national security it is covered by section 24.

Things that FOI Officers need to know (s.23)

  • That list of bodies can change – the National Crime Agency has been added since the Act was passed.
  • It is a class exemption – so no need to consider whether any prejudice will be caused – merely whether it was supplied by, or relates to, any of the listed bodies.
  • The Information Commissioner considers that “relates to” should be interpreted broadly – though he does concede that “there will be a point where the connection between the requested information and a security body is too remote to engage the exemption.”
  • If it is more likely than not that the information relates to a security body, the exemption will be engaged.
  • Public authorities can refuse to confirm or deny the existence of information provided by or relating to the listed bodies – as long as they can demonstrate that it is more likely than not that any such information would be supplied by such a body if it did exist.
  • If the part of the exemption preventing disclosure applies, then section 24 cannot be cited in addition.
  • If the authority chooses to neither confirm nor deny whether information is held, the Commissioner suggests that the equivalent part of section 24 can be used as well, if relevant (though Wadham queries the validity of this).
  • This exemption is not subject to a public interest test – for most of its life. However, once the information becomes historical (ie older than 20 years from 2020 onwards), the exemption becomes qualified.

Things that FOI Officers need to know (s.24)

  • “required for the purposes of” is interpreted by the Information Commissioner as meaning “reasonably necessary”
  • the definition of “national security” was explored in Norman Baker v IC & Cabinet Office, where the definition from a House of Lords case was adopted.
  • Public authorities need to set out why withholding the information is reasonably necessary
  • This exemption is subject to a public interest test.
  • If the consequences of disclosure are particularly severe, then there will be a strong public interest in withholding the information even if there is a low risk that they would come to pass.
  • Public authorities can neither confirm nor deny whether they hold information if required to safeguard national security. For practical reasons, both exemptions can be cited in these circumstances (though Wadham queries this).

Things that FOI Officers need to know (s.25)

  • Members of the Cabinet, the Attorney General, the Advocate General for Scotland and the Attorney General for Northern Ireland can issue a ministerial certificate certifying that either exemption applies.
  • A certificate doesn’t have to be issued for section 23 or section 24 to apply.
  • The certificate must bear the minister’s signature.
  • For section 24, a certificate will contain a general description of the information covered.

Things that requesters need to know

  • You will need strong arguments to overturn the use of these exemptions.
  • Section 24 is subject to a public interest test – this is the likeliest area of a successful appeal. The Information Commissioner comments that public authorities should not seek to turn section 24 into an absolute exemption despite the strong public interest in protecting national security.
  • The fact that section 23 becomes subject to a public interest test when records become historical suggests that age may well be a strong factor with these exemptions. It may be slightly easier to argue for disclosure of information relating to events several decades ago than more recent matters.

Essential case law

Recommended reading

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