Chapters: 01 | 02 | 03 | 04 | 05 | annex A | annex B | annex C
When answering an FOI request officials will need to consider the "neither confirm nor deny" (NCND) exemption.
It has been a long-standing policy of successive governments to use a non-committal reply, neither confirming nor denying, to questions in cases where either a positive or negative response would be harmful to national security or would confirm or deny a Security Body's interest.
The point here is that a positive or negative response to an FOI request may provide information confirming or denying whether the Security Bodies have (or have not) an interest in a particular individual, organisation, area of information or subject.
In the FOI context (where requests will be for information, not personal data which is covered by the Data Protection Act 1998) it is likely that the NCND exemption will be needed to prevent Security Bodies' interests or national security issues from being confirmed or denied.
Parliament's acceptance of this is reflected in the FOI Act and other legislation. Such legislation includes the Regulation of Investigatory Powers Act 2000 (part 4) and the Official Secrets Acts 1911 to 1989.
The Official Secrets Act 1989 makes it unlawful for any Crown servant or government contractor to make any unauthorised disclosure of certain limited classes of information held by virtue of their work. In the case of security and intelligence information this includes any unauthorised statement that purports to be a disclosure or is intended to be taken as such.
The NCND exemption is also reflected in the current Data Protection Act, as it was in the previous Data Protection Act. The Code of Practice on Access to Government Information, Second Edition 1997, gives "information whose disclosure would harm national security" as a category of information that is exempt from the provisions of the Code.
The NCND exemption is particularly important in protecting the secrecy of the work of the Security Bodies, where that is necessary to protect national security. The fact that these Bodies are specifically excluded from the ambit of the FOI Act (they are not "public authorities" for FOI purposes) and also that information directly or indirectly supplied by them or relating to them is excluded from the FOI Act (section 23) underlines the importance of this.
The NCND exemption may be relevant to a wide range of FOI requests involving Security Body information which may be protected by exemptions under sections 23 and 24.