Line to take - LTT53 - Reliance on s23(5) and s24(2) in conjunction

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  • Section/Regulation: s23, s24
  • Issue: Reliance on s23(5) and s24(2) in conjunction
  • Source: Information Tribunal
  • Details: Baker / Cabinet Office (12 February 2007)
  • Related Lines to Take: n/a
  • Related Documents: EA/2006/0045
  • Contact: EW
  • Date: 05/07/2007
  • Policy: Reference: LTT53
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Security operations may be carried out by bodies both listed and not listed in s23(3). Because responses to requests for information on such matters should not disclose the involvement of either a s23(3) body specifically or, alternatively, a body not listed in that subsection, s23(5) and s24(2) should be relied upon consistently and in conjunction.

Further Information

In the case of Baker v the Information Commissioner and the Cabinet Office, the Tribunal ruled that the ICO was right to decide that the Cabinet Office’s refusal to confirm or deny whether it held requested information was in accordance with the Act. The complainant in this case had requested information firstly about whether or not the Wilson Doctrine* was still in operation, and secondly about the number of MPs subject to telephone tapping or other surveillance since the Doctrine was set out.

In its decision on the second request, the Tribunal quoted verbatim a substantial part of the witness statement of the Director of Security and Clearance at the Cabinet Office who set out why both s23(5) and s24(2) were claimed in its refusal to confirm or deny whether information in relation to that request was held.

He explained that information concerning the telephone tapping of MP5 (if it were held) could relate to the bodies specified in 23(3) or to other bodies not listed, such as the police, Defence Intelligence Staff and HM Revenue and Customs. This is because section 6 of the Regulation of Investigatory Powers Act 2000 lists the bodies permitted to carry out communication interceptions under warrant, and this list includes four of the bodies in s23(3) and others, such as those detailed above. In other words, the interception of communications can be carried out by bodies other than those provided by section 23(3).

The Cabinet Office argued (and the Tribunal concurred) that, “it is important that any response under FOIA does not allow any deduction as to whether or not there is any involvement by a section 23 body. It is equally important to protect the fact of whether or not an intercepting body which is not listed in section 23 is involved.” It is for this reason that section 24(2) was also claimed.

It went on to explain that, “if the Cabinet Office were to rely solely on either section 23(5) or on section 24(2) in neither confirming or denying that information was held, in those cases where section 23(5) was relied upon alone that reliance could itself reveal that one of the bodies listed in section 23(3) was involved. That in itself would constitute the release of exempt information. Thus it is necessary to rely on both sections 23(5) and 24(2) consistently in order not to reveal exempt information in a particular case.”

Although this case specifically relates to information concerning surveillance, other situations will arise where information not supplied by or relating to any of the bodies listed in s23(3) may nevertheless be withheld for the purpose of safeguarding national security. In such situations, the use of section 23(5) and section 24(2) in conjunction can be upheld.

(*) The Wilson Doctrine follows a statement made by Harold Wilson in the House of Commons on 17 November 1966 in which, in answer to a number of Parliamentary Questions, he said that he had given instruction that there would be no telephone tapping of MPs, and that if this policy changed he would make a statement to the House at such a moment as he deemed compatible with the security of the country.