How sections 23 and 24 interact

About this detailed guidance

This guidance discusses how the exemptions contained in sections 23 and 24 interact and is written for use by public authorities. Read it if you have questions not answered in the Guide, or to understand how both exemptions relate to one another and when they can be used together.

In detail

• What is the purpose of this guidance?
• What exemptions are contained in sections 23 and 24 of FOIA?
• How do we apply sections 23(5) and 24(2) of FOIA?
• How do we apply sections 23(1) and 24(1) of FOIA?
• Can we confirm we hold requested information and also rely on the NCND provisions?
• What else should we consider?

What is the purpose of this guidance?

There is often significant overlap between the matters protected by sections 23 and 24; the work of the security bodies is to protect national security and revealing information about their work or involvement in particular issues may well undermine national security. Sections 23(1) and 24(1) provide exemptions from the duty to disclose and are mutually exclusive in that public authorities can only apply section 24(1) to information that hasn’t been supplied by, or relates to, a security body.

As a consequence, citing either exemption can itself reveal something about the nature of the information being withheld. For example, if a public authority withheld information using section 23(1) it would be clear that the withheld information did relate to a security body. Whereas, the use of section 24(1), on its own, would mean that the information did not relate to a security body. This has led public authorities to apply the exemptions from the duty to confirm or deny whether information is held in order to avoid having to use section 23(1) or 24(1), even when it is clear that the requested information is held.

The exemptions from the duty to confirm whether information is held are known as the “neither confirm nor deny” (NCND) provisions. The NCND provisions provided by sections 23(5) and 24(2) are not mutually exclusive.

This guidance first sets out the correct application of sections 23(5) and 24(2). It then addresses the issues raised by the mutual exclusivity of sections 23(1) and 24(1). It next addresses the issues raised by partial disclosure of requested information or partial confirmation that information is held. The guidance concludes by considering other issues relevant to the application of sections 23 and 24 and how they should be addressed. 

What exemptions are contained in sections 23 and 24 of FOIA?

Section 23 states:

(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).

(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 by, or relates to, any of the bodies specified in subsection (3).

Section 24 states:

(1) Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purposes of safeguarding national security.

(2) The duty to confirm or deny does not arise if, or to the extent that, exemption from 1(1)(a) is required for the purposes of safeguarding national security.

The exemptions in sections 23 and 24 from the duty to disclose requested information are specifically set out in sections 23(1) and 24(1).

The exemptions in sections 23 and 24 from the duty to confirm whether information is held, known collectively as the ‘neither confirm nor deny’ (NCND) provisions, are specifically set out in sections 23(5) and 24(2).

Section 23(5) is an absolute exemption and therefore not subject to the public interest test.

Section 24(2) is a qualified exemption and therefore subject to the public interest test.

How do we apply sections 23(5) and 24(2) of FOIA?

Unlike the exemptions from the duty to disclose requested information, the exemptions from the duty to confirm or deny whether information is held in sections 23(5) and 24(2) are not mutually exclusive. This means that you can apply both exemptions to the same request.

This view was confirmed by the First-tier Information Rights Tribunal in The All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner and the Foreign and Commonwealth Office (EA/2011/0049-0051 3 May 2012) (paragraph 109).

Applying sections 23(5) and 24(2) to the same request

Section 1(1)(a) requires you to confirm whether or not you hold the requested information. However, section 2(1) allows you to respond by refusing to confirm or deny whether you hold the requested information.

If section 23(5) is engaged there is no need for you to also consider the application of section 24(2) in order to remove the obligation to confirm or deny. You could rely solely on section 23(5). Where you consider that one exemption provides sufficient protection, we would encourage you to rely on one exemption.

However, we recognise that some public authorities are concerned that inferences would be drawn if they were to rely on only one exemption. For example, if you only relied on section 23(5) there is a risk that people would infer that security bodies were in fact involved. There may be no obvious grounds for drawing such a conclusion, but the risk remains that those hostile to UK interests could perceive the use of one exemption on its own as revealing something particular about the activities of the security bodies.

As a consequence, some public authorities consider it prudent to apply both NCND provisions. Because the exemptions are not mutually exclusive this does not present a problem. However, where you cite both exemptions, FOIA requires each to actually be engaged. In other words, you must apply each exemption independently, on its own merits. It is not correct to engage one exemption and then attempt to apply the other on the grounds that something would be revealed by relying on just one alone. Each exemption must be engaged separately, based on what would be revealed by confirming or denying whether you hold the requested information.

The examples above demonstrate that both exemptions are engaged in their own right because of what confirmation or denial would reveal. Remember that section 24(2) is qualified so you must also conduct the public interest test in relation to the application of section 24(2).

In many situations where the request is in the territory of national security, both exemptions apply in their own right. This is because confirming or denying that you hold the requested information in these circumstances will itself disclose information about a security body. The phrase “in the territory of national security” is used by the ICO but does not actually appear in the legislation. For further information, read our detailed guidance on Section 23 (security bodies).

When applying s24(2) it is appropriate to consider whether confirming or denying would reveal information about the involvement or non-involvement of a security body, which in turn could undermine national security. If it does, then section 24(2) is engaged. Section 24(2) would still have been engaged on its own merits, independently of section 23(5), albeit for the same reason. This approach is demonstrated by revisiting the previous examples.

Although in many situations where the request is in the territory of national security both exemptions will apply in their own right, there will be some requests where only one of the two exemptions is engaged.

This may seem a rather extreme example. However, it serves to demonstrate that there will be occasions when only section 23(5) would apply.

The ICO’s approach to complaints about the application of the NCND provisions

When we receive a complaint about a public authority’s use of sections 23(5) and 24(2), we will consider the application of each exemption separately, in line with the approaches set out in the guidance Section 23 (security bodies) and Section 24 (national security). The ICO reserves the right to be informed whether the information is held and, if so, to have access to it. However, in the majority of cases, we anticipate that we will consider the application of NCND provisions without knowing whether the information is held.

We recognise the concerns that some public authorities have about using either of these exemptions on their own because of the inferences that might be drawn about the involvement or non-involvement of a security body. Where this is an issue, we will reach a decision on each exemption separately, but will carefully consider how any decision notice is articulated to avoid inferences being inappropriately drawn.

How do we apply sections 23(1) and 24(1) of FOIA?

Sections 23(1) and 24(1) are mutually exclusive. This means they cannot be applied to the same information.

Although you could respond to many requests that raise national security concerns using the NCND provisions, there will be situations when it is obvious that you hold the information. This may be as a result of official statements to that effect. In these situations the use of NCND would serve little purpose. In these cases we would encourage you to confirm that you hold the information.

When it is obvious that you hold the information, but not obvious whether its contents relate to a security body, this in itself may be worthy of protection. The dilemma for you is that relying on either section 23(1) or section 24(1) alone, would reveal whether the requested information relates to a security body.

In these circumstances, you should not attempt to apply the NCND provisions in order to avoid citing an exemption from the duty to disclose the actual information. Even though relying on just one of the exemptions from the duty to disclose information would itself reveal something of the nature of the information, this is not a basis for engaging sections 23(5) or 24(2). As discussed above, the only basis for applying sections 23(5) or 24(2), or both, is what would be revealed by confirmation or denial that you hold the information.

When it is obvious that you hold the information and therefore you see no value in refusing to confirm or deny, or if the NCND provisions can’t be engaged on the facts of the case, you will be faced with the problem of applying either section 23(1) or section 24(1). We have developed an approach to deal with this situation which is set out below.

Applying sections 23(1) and 24(1) “in the alternative”

The fact that you can only apply section 24(1) to information that is not protected by section 23(1) can present a problem if you do not want to reveal whether a section 23 security body is involved in an issue. If you could only cite section 24(1) in your refusal notice, this would disclose that no section 23 body was involved. Conversely, if you only cite section 23(1), this would clearly reveal the involvement of a security body. To overcome this problem, the ICO allows you to cite both exemptions “in the alternative” when necessary. This means that although only one of the two exemptions can actually be engaged, you may refer to both exemptions in your refusal notice. 

The background to this situation is that public authorities were concerned that only relying on either section 23(1) or section 24(1) would reveal the involvement, or not, of a security body. To avoid this issue they applied the NCND provisions of both exemptions.

The ICO is satisfied that allowing public authorities to cite sections 23(1) and 24(1) in the alternative is the pragmatic solution to this issue. There are benefits to the applicant in that they at least receive confirmation that you hold the information. In addition, you do not appear to be unnecessarily obstructive by refusing to confirm whether you hold information when it is obvious  that you do.

Refusal notices

When you cite sections 23(1) and 24(1) in the alternative, you need to consider the contents of your refusal notice. Technically, section 17(1) requires you to specify the exemption you are relying on. However, it is important in these circumstances that the refusal notice effectively disguises which provision actually applies. Therefore, the ICO will accept a refusal notice which cites both exemptions, stating that you are citing them in the alternative and then explaining why each one could apply. As section 24 is qualified, the refusal notice should also explain your application of the public interest test to that provision.

The level of detail that you can provide when explaining why each exemption could apply will depend very much on the circumstances. In some cases it will be very apparent how each exemption could apply.

It may be appropriate for you to consider applying s17(4), in cases where it proves more difficult to explain why the exemptions apply or, in the case of section 24, why the public interest favours maintaining the exemption. This subsection disapplies the obligation to provide such explanations where to do so would itself involve the disclosure of exempt information.

Considering the public interest in maintaining section 24(1)

Where you have applied sections 23(1) and 24(1) in the alternative, you also need to consider the consequences of applying the public interest test to section 24(1). Could the public interest test overturn the application of section 24(1) and so prevent the use of the two exemptions in the alternative?

Where you have applied sections 23(1) and 24(1) in the alternative, only one of them will actually be engaged.

There are two situations where you will cite the exemptions in the alternative.

Firstly, the information does not relate to a section 23 security body, but you consider that section 24(1) is engaged and that the public interest favours maintaining the exemption. In this case, you will be satisfied that the public interest favours maintaining the exemption by the time you consider the need to cite the two exemptions in the alternative.

The second scenario is where the requested information engages section 23(1). In these cases the application of section 24(1) and the public interest test is only conjectural. It makes sense that in this scenario the hypothetical public interest test for section 24(1) will always favour maintaining the exemption.

The ICO’s approach to complaints about the application of section 23(1) and section 24(1)

If a complaint is made to the ICO, you need to explain to us which exemption you are actually relying on. We then investigate the application of that exemption in line with the approaches set out in the guidance Section 23 (security bodies) and Section 24 (national security). In the majority of cases, this means that we will need access to the information. However, in some section 23(1) cases and, exceptionally, some section 24(1) cases, we may be able to make a decision based on submissions, reasoned explanations and confidential discussions alone.

The ICO can find that either the exemption was not engaged or, in the case of section 24(1), that the public interest did not favour maintaining the exemption. However, we are very aware of the importance of protecting national security and where section 24(1) is engaged the Commissioner would not decide lightly that the balance of the public interest test favours disclosure. You should also remember that when section 23(1) is cited, the ICO could find that the information does not relate to a section 23 security body.

Where the ICO finds in favour of a public authority, the decision notice does not allude to which exemption has actually been applied. It simply says that the Commissioner is satisfied that one of the two exemptions cited is engaged and that, if the exemption is section 24(1), the public interest favours withholding the information. Any decision notice upholding a complaint simply says that the Commissioner is not satisfied that either of the two exemptions is engaged, or that, in the case of section 24(1) being engaged, the public interest favours disclosure. In either scenario, the decision notice does not reveal which exemption the public authority is actually relying on.

Can we confirm we hold requested information and also rely on the NCND provisions?

You may confirm you hold at least some of the requested information but may still wish to conceal whether or not you hold additional information that either relates to a national security body or could undermine national security. In such a scenario you could respond to a request by confirming you hold some information, and then either disclose the information or withhold it, relying on appropriate exemptions. You could then also refuse to confirm or deny whether you hold any additional information, citing either sections 23(5), or 24(2), or both.

However, if the request is for a specific file and you have confirmed that it is held, then there is no scope for relying on the NCND provisions because there is no additional information within the scope of the request.

You should therefore consider how a request is worded and whether it provides you with the scope for confirming that you hold some of the information and also relying on the NCND provisions to refuse to confirm or deny whether you hold any additional information.

What else should we consider?

Where information, potentially exempt under sections 23(1) and 24(1), is withheld under other exemptions

There can be situations when, although the requested information could relate to national security matters, you confirm you hold the information but withhold it under other exemptions. You may be concerned that because you have not used sections 23(1) and 24(1) to withhold the information, people will assume that the information does not relate to national security issues or a security body. In these cases, you could explain to the applicant that nothing can be inferred from your response about whether the withheld information would or would not also be exempt under either of these sections.

There is nothing in FOIA that prevents you from giving this additional explanation. However, it is only something that you have provided over and above your obligations under FOIA. In the above example, the public authority only relied on the exemptions in sections 26 and 27 of FOIA. Accordingly, these are the only provisions that the ICO would consider if we received a complaint.

In effect, all the additional explanation does is remind the applicant what is, or is not, safe to infer by you not citing sections 23(1) or 24(1) and instead relying on other exemptions. If this is all you wish to achieve, the ICO has no objection. However, you should consider whether raising the application of sections 23(1) and 24(1) does more harm than good by alerting the applicant to the possibility that those sections may be relevant to the request.

Attempting to use sections 23(5) and 24(2) to disguise the content of the information

What you cannot do is attempt to use the NCND provisions of sections 23(5) and 24(2) to refuse to confirm or deny whether the withheld information is also exempt under sections 23(1) or 24(1).

Sections 23(5) and 24(2) remove the obligation to confirm or deny whether you hold  the requested information. They have nothing to do with refusing to confirm or deny which exemptions you have applied to the withheld information.