Difference between revisions of "FOIA Section 23 Exemption"

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(What the law says)
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== What the law says ==
 
== What the law says ==
  
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23 Information supplied by, or relating to, bodies dealing with security matters
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:(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).
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:(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.
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:(3) The bodies referred to in subsections (1) and (2) are—
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::(a) the Security Service,
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::(b) the Secret Intelligence Service,
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::(c) the Government Communications Headquarters,
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::(d) the special forces,
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::(e) the Tribunal established under section 65 of the Regulation of [2000 c. 23.] Investigatory Powers Act 2000,
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::(f) the Tribunal established under section 7 of the [1985 c. 56.] Interception of Communications Act 1985,
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::(g) the Tribunal established under section 5 of the [1989 c. 5.] Security Service Act 1989,
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::(h) the Tribunal established under section 9 of the [1994 c. 13.] Intelligence Services Act 1994,
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::(i) the Security Vetting Appeals Panel,
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::(j) the Security Commission,
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::(k) the National Criminal Intelligence Service, and
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::(l) the Service Authority for the National Criminal Intelligence Service.
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:(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.
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:(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 ==
 
== Official Guidance ==

Revision as of 18:06, 12 July 2008

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

Section 23 applies to two categories of information:

1. information supplied directly or indirectly by the Security Bodies that are listed in section 23(3) (this includes the Security Service, the Secret Intelligence Service and GCHQ). Whether this aspect of section 23 applies in a particular case will turn on the source of the information; and

2. information that relates to one of the Security Bodies. The application of this part of section 23 will turn on the content of the information.

Key points

  • The fact that a public authority does not hold information supplied by one of the Security Bodies can itself be information relating to those bodies. If information falls within the exemption in section 23, it will very often be important to consider whether it is necessary to rely on the exclusion of the duty to confirm or deny whether the information is held.
  • The interaction between section 23 and section 24 (national security) is quite complex and needs to be considered carefully in order to ensure that the relevant public interests are protected;
  • It may be necessary to consult the Security Body concerned if it is anticipated that section 23 might apply
  • Section 23 is not subject to any public interest balance
  • A ministerial certification procedure exists where it becomes necessary to rely on this exemption.

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, and
(l) the Service Authority for the National Criminal Intelligence Service.
(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

DCA: http://www.dca.gov.uk/foi/guidance/exguide/sec23/index.htm


Decision Notices

  • 11/07/2006 - FS50086063 - Cabinet Office - Complaint Not upheld
  • 27/11/2006 - FS50079488 - Export Credits Guarantee Department - Complaint Not upheld
  • 21/12/2006 - FS50074342 - North Yorkshire Police - Complaint Not upheld
  • 27/02/2007 - FS50074788 - Northern Ireland Office - Complaint Not upheld
  • 19/11/2007 - FS50101728 - Foreign and Commonwealth Office - Complaint Not upheld
  • 28/02/2008 - FS50102023 - Cabinet Office - Complaint Not upheld
  • 12/05/2008 - FS50090742 - Cabinet Office - Complaint Not upheld
  • 12/05/2008 - FS50163794 - Cabinet Office - Complaint Not upheld
  • 02/07/2008 - FS50177327 - Cabinet Office - Complaint Not upheld