Chapters: 01 | 02 | 03 | 04 | 05 | annex A | annex B | annex C
As noted earlier, it is not necessary for a department to serve a Ministerial certificate under either sections 23 or 24 in order to apply those exemptions. In practice, however, it will often be beneficial to do so as the procedural consequences are that the matter is then brought before a specially constituted panel of the Information Tribunal rather than the Commissioner. This is preferable in most cases since, unlike the Tribunal, there is no special statutory provision for the Commissioner to deal with sensitive information.
A Ministerial certificate can be obtained at any time, even after an applicant has exhausted the internal review procedure and applied to the Information Commissioner under section 50 for a decision as to whether a request for information made by him to a department has not been dealt with in accordance with the provisions for dealing with requests. This should ensure that the case is heard by the specially constituted panel of the Tribunal. If for any reason a Ministerial Certificate is not deemed appropriate, the second stage of the appeal process would be as follows (the applicant is, from this stage on, referred to as the appellant).
When the Commissioner receives a request for a decision from an appellant, he will need to make a decision on whether the particular exemption has been correctly applied.
Where an exemption under section 23 has been claimed, the Commissioner will need to consider whether the information falls within the scope of the exemption. It will be a matter of fact whether or not the information was directly or indirectly supplied by, or relates to, one of Security Bodies. However, an element of doubt may arise where the information appears to be a composite made up from material provided by different sources or may have passed through a number of hands so obscuring its origins. The Information Commissioner will then have to consider the issue and make a decision.
Where an exemption under section 24 is claimed, the Commissioner will consider both whether the exemption is required for the purpose of safeguarding national security and whether the public interest in disclosure has been properly assessed.
The Commissioner will usually require further information in order to make a decision. To acquire this, he will serve on the department a notice known as an "Information Notice". In particular he will want a copy of the information itself to enable him to judge whether it properly falls under the ambit of the exemption, or (in a case where the national security exemption has been relied upon) if the public interest in disclosure had been properly assessed. The Commissioner's powers of inspection and seizure under a warrant do not apply to information that is exempt under 23(1) or 24 (1) however.
The department can appeal against the Information Notice under section 57(2). Such an appeal would be on the grounds that the Commissioner had gone too far in respect of the information being sought. The Tribunal would then determine this particular issue and remit the matter back to the Commissioner who would then reconsider as necessary, and then proceed to decide whether or not to issue a Decision Notice (section 50) or an Enforcement Notice (section 52).
Alternatively, if a department failed to comply with an Information Notice, the Commissioner could make a decision on the basis of the information he already had, and issue a Decision Notice or Enforcement Notice. Alternatively, he could certify to the High Court that the department had failed to comply with the Information Notice; the High Court would hear evidence and argument and then deal with this as a contempt of court under section 54.
Once the Commissioner has reached a decision he will issue a Decision Notice. If he has found in favour of the appellant, this notice will stipulate the action that the department must take, including the time period for action.
The Commissioner may subsequently issue an Enforcement Notice if the department fails to act in accordance with the Decision Notice.
Under section 57 of the Act, the department will have a right of appeal to the Tribunal against any Information, Decision or Enforcement Notice.