FOIA Section 23 Exemption

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Section 23: Information Supplied by, or Related to, Bodies Dealing with Security Matters

Section 23 exempts information received from, or related to, the security bodies listed at section 23(3) of the Freedom of Information Act. This includes the Security Service, the Secret Intelligence Service, Government Communications Headquarters and the Serious Organised Crime Agency.

Key points:

  • It will often be appropriate to 'neither confirm nor deny' that the requested information is held, as the fact that a public authority does or does not hold information supplied by one of the security bodies can itself be information relating to those bodies.
  • The interaction between section 23 and section 24 (national security) is complex and needs to be considered carefully in order to ensure that the relevant public interests are protected.
  • Section 23 is not subject to any public interest test.
  • A ministerial certification procedure exists where it becomes necessary to rely on this exemption.
MoJ summary guidance.


What the law says

23 Information supplied by, or relating to, bodies dealing with security matters

(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).
(2) A certificate signed by a Minister of the Crown certifying that the information to which it applies was directly or indirectly supplied by, or relates to, any of the bodies specified in subsection (3) shall, subject to section 60, be conclusive evidence of that fact.
(3) The bodies referred to in subsections (1) and (2) are—
(a) the Security Service,
(b) the Secret Intelligence Service,
(c) the Government Communications Headquarters,
(d) the special forces,
(e) the Tribunal established under section 65 of the Regulation of [2000 c. 23.] Investigatory Powers Act 2000,
(f) the Tribunal established under section 7 of the [1985 c. 56.] Interception of Communications Act 1985,
(g) the Tribunal established under section 5 of the [1989 c. 5.] Security Service Act 1989,
(h) the Tribunal established under section 9 of the [1994 c. 13.] Intelligence Services Act 1994,
(i) the Security Vetting Appeals Panel,
(j) the Security Commission,
(k) the National Criminal Intelligence Service,
(l) the Service Authority for the National Criminal Intelligence Service.
(m) the Serious Organised Crime Agency.
(4) In subsection (3)(c) “the Government Communications Headquarters” includes any unit or part of a unit of the armed forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions.
(5) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

Official Guidance

Detailed MoJ guidance: http://www.justice.gov.uk/guidance/docs/foi-exemption-s23.pdf

ICO Lines To Take

Relevant Lines to Take
  • LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions - 20/06/2008
  • LTT53 - Reliance on s23(5) and s24(2) in conjunction - 07/05/2007


Decision Notices

Complaints upheld / partly upheld (P) Complaints not upheld
  • FS50219758(P) - Home Office - 23/02/2010
  • FS50231561 - Commissioner of the Metropolitan Police Service - 15/02/2010
  • FS50178276 - Commissioner of the Metropolitan Police Service - 10/12/2009
  • FS50213522 - West Yorkshire Police - 03/08/2009
  • FS50130293(P) - Office of Government Commerce - 10/06/2009
  • FS50137790 - Cabinet Office - 30/04/2009
  • FS50154349 - Metropolitan Police Service - 20/04/2009
  • FS50124442(P) - Cabinet Office - 05/03/2009

Includes DNs up to: 26 April 2010



Freedom of Information Act 2000
Exemptions
12 21 22 22A 23 24 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44