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4.1 If a department considers that information needs protecting from disclosure for reasons of national security, but it is appropriate to confirm whether or not the information exists, then the exemption under section 24(1) will apply. In those situations where it is appropriate for a department to neither confirm nor deny the existence of the information sought it will claim the section 24(2) exemption. As with the guidance on section 23, where a department claims a section 24(2) exemption it will not be appropriate or necessary to claim the section 24(1) exemption. Clearly it would not make logical sense for the duty to communicate the information to arise where it was decided to give a neither confirm nor deny response.
4.2 As with section 23(5) it is possible for a department to rely upon the section 24(2) exemption even in situations where it does not hold the information sought. The section 24(2) exemption may also be used where it would endanger national security to state that no information is held by a department.
4.3 Where information is covered by section 24 the department should always consider the two points in section 3.3. Where the exemption from the duty to confirm whether or not the information is held is claimed, the department is required to reply to the applicant in accordance with section 17 of the Act . Unless section 17(4) applies, which allows an explanation to be withheld if this would itself disclose exempt information, the department must state: - that the section 24 exemption is being claimed, explain why the exemption applies; and state the reasons for claiming that the public interest in maintaining the exemption outweighs the public interest in disclosure by specifying the public interest factors (for and against disclosure) which have been taken into account in reaching the decision.
4.4 As stated previously the Act permits the section 24(2) exemption to be used in conjunction with the section 23(5) exemption (in both cases the exemption from the duty to confirm the existence of the information requested). The use of both exemptions in this way will be appropriate where the information requires exemption for the purposes of safeguarding national security and the information requested is, or where no information is held, could reasonably have been, directly or indirectly supplied by, or related to a Security Body. If the information sought requires exemption from the duty to confirm its existence for the purpose of safeguarding national security, but it is otherwise not supplied by or related to a Security Body, then only the section 24(2) exemption may be claimed. In such a case it is important to take fully into consideration the factors which might justify an NCND response under section 23(5) where no information from or related to a Security Body is held (see above).
4.5 The Act does not however allow a section 24(1) exemption to be applied to information that falls within the section 23(1) exemption. This mutual exclusivity only arises where a department is claiming the exemption from the duty to communicate information sought.
4.6 In any event, both exemptions can be applied in relation to a request for information, where part of that information derives from a Security Body and other parts of it derive from other sources, and where the section 24 exemption is appropriate because non-disclosure is necessary to safeguard national security.
4.7 It is also important to note that where the request covers a range of information, and only part of the information is required to be exempt under section 24, the remainder of the information must be disclosed (unless requiring protection by another exemption).
4.8 Section 24 provides for a Ministerial certificate to be signed in support of a decision to claim an exemption from disclosure under the terms of section 24. The purpose of a certificate is to enable a Minister to confirm that the exemption is, or at any time was, required for the purpose of safeguarding national security.
4.9 A Ministerial certificate requires the signature of a Minister of the Crown (who under the definition used in the Act are Cabinet Ministers, the Attorney General and the Advocate General).
4.10 It is not necessary to have a certificate in order to rely on the section 24 exemption but it will strengthen the position of the department in any legal proceedings, and determine the forum for hearing a complaint. Where a Ministerial certificate has been served, any appeal against the certificate is heard by the Tribunal rather than by the Commissioner. (See Annex A.)
4.11 The Act provides for two types of certificate under section 24. It may either identify information to which it applies by means of a general description and/or to be expressed to have prospective effect. Alternatively, an ad hoc certificate can be drafted to cover specific information in response to a particular request.
4.12 Where a department holds particular categories of information, the disclosure of which is always likely to be against the interests of national security, it may be appropriate to hold a prospective certificate, already signed by the Minister, relating to that particular category of information. However, each decision to deploy a certificate should be taken on its own merits in light of the prevailing circumstances.
4.13 Where a department wishes to rely on the section 24 exemption in relation to a specific request for information, and the department does not hold a prospective general certificate which covers it, consideration should be given to drawing up a specific ad hoc certificate.
4.14 Where an ad hoc certificate is used, it will be drafted so as to meet a particular request for information, and will therefore be created at the same time and in the immediate context of the decision as to whether the exemption is required and how the balance of the public interest in disclosure applies.
4.15 If a Ministerial certificate is deployed in relation to the claimed exemption it will only relate to the question of whether the exemption is required for the purposes of safeguarding national security. It does not certify that the public interest in disclosure test has been assessed as this is a separate consideration in the process (see para 3.3 above for consideration of the public interest in relation to section 24).
4.16 Where a certificate is general and prospective, the assessment of the public interest in disclosure test must be carried out anew each time the certificate is deployed, both to ensure that the certificate covers that information sought and to satisfy the requirement to assess the public interest on a case by case basis. There will also be a need to keep any general and prospective certificates under review because information which it is considered necessary to withhold for the purposes of safeguarding national security can be expected to vary over time.
4.17 Officials should consider preparing a Ministerial certificate at an early stage in response to a request for information where the national security exemption is to be relied upon. Since the certificate is relevant primarily to the stage at which formal enforcement action becomes a possibility departments need not to serve a certificate on the applicant at this stage but defer doing so until the applicant has exhausted the internal review process and indicated that he will be applying to the Commissioner. To serve the certificate when answering a request may be premature and involve unnecessary work, but a department ay nevertheless want to consider the drafting of a possible certificate at this stage in case it becomes necessary to utilise it.
4.18 In any event, Departments should consider establishing a procedure with the appropriate private office so that where necessary certificates can be drawn up and signed without undue delay. The Act does not require that a certificate is signed by any particular minister. It is also possible for one ministerial certificate to cover round robin cases. Where the information being safeguarded potentially crosses departmental boundaries, it will be important to undertake interdepartmental consultation at an early stage. You should contact your departmental security officer and, when dealing with round-robin requests, the FOI co-ordination unit.
4.19 Consideration should be given to drawing up a specific certificate template; departments may wish to ask their lawyers to prepare a draft which can be adapted for use when needed.