Line to take - LTT33 - Duty to confirm or deny in the EIR

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  • FOI/EIR: EIR
  • Section/Regulation: reg 12(6); reg 12(5)(a)
  • Issue: Duty to confirm or deny in the EIR
  • Source: Policy Team
  • Details: n/a
  • Related Lines to Take: LTT34
  • Related Documents: Awareness Guidance 21
  • Contact: EW
  • Date: 16/02/2007
  • Policy Reference: LTT33
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

For all exceptions other than that provided by regulation 12(5)(a), the duty to confirm or deny still always applies whether or not the information, if held, would be disclosed.

Further Information

In the Freedom of Information Act, the duty to confirm or deny is clearly set out in s1(1)(a), which provides that, “Any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request.” Section 1(6) provides that it be called “the duty to confirm or deny.”

In relation to most of the exemptions, if complying with the duty would itself engage the exemption (whether or not the information is actually held), subject to the public interest test where applicable, the duty does not arise.

The EIR do not set out the duty to confirm or deny in the same way.

However, regulation 12(6) states that where the disclosure of information would adversely affect any of the interests referred to regulation 12(5)(a) (international relations, defence, national security or public security) and would not be in the public interest, a public authority can respond by neither confirming nor denying that the information exists and is held.

This implies that, for all other exceptions, public authorities may not respond in this way. In other words, in practice, the duty to confirm or deny does exist for all other environmental information in all circumstances, including where the disclosure of the information itself is not required.