When dealing with Freedom of Information (FOI) requests, there is a principle known as “neither confirm nor deny”. This principle serves as a safeguard against the inadvertent disclosure of sensitive or classified information, ensuring confidentiality while upholding transparency and accountability.
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Legal Basis
Section 1 of the Freedom of Information Act requires public bodies to either:
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share information when requested
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confirm that they do not have the information
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confirm they do have the information but explain, based on one or more exemptions, why they will not share it.
However in some circumstances the best thing to do is neither confirm nor deny whether the information is held at all.
Why?
In some circumstances simply telling people whether or not you hold the information can tell people things that, in the public interest, or because of an absolute exemption, they should not know.
Case Study: Section 23 Exemption
Section 23 of the Freedom of Information Act sets out the power of public authorities to neither confirm nor deny that they hold requested information provided by, or relating to, a range of bodies set out in Section 23 (3) of the Act. This serves to protect essential interests such as national security and law enforcement.
What Does the Act Say?
Section 23(5) of the Act reads “The duty to confirm or deny does not arise if… it would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).”
What Does This Mean?
A public authority gets a request for information that was supplied by or relates to, for example, an investigation by the National Criminal Intelligence Service. If they confirm they have the information, or deny that they have it, then the public authority might risk that investigation.
Therefore the best thing the public authority could do is issue a refusal notice saying that they can neither confirm not deny whether the information requested is held by them.
Purpose of Neither Confirm Nor Deny
The overarching objective of being able to neither confirm nor deny is to prevent harm that may arise from confirming or denying the existence of certain information. Its scope extends to situations where disclosure could jeopardize national security, compromise ongoing investigations, or infringe upon individuals’ rights to privacy.
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Which Exemptions Does This Apply To?
The ability to neither confirm nor deny can apply to virtually all exemptions to disclosing information. However, there are a couple where there is no need to do so.
Examples include:
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section 21, where information is exempt because the requestor can access it by other means
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section 22, where information is exempt because the public authority intends to publish it in the future
Protection of Personal Data
Beyond national security and law enforcement, NCND also serves to protect individuals’ privacy and personal data. Confirming or denying the existence of records containing sensitive personal information could violate data protection laws or infringe upon individuals’ rights, underscoring the need for discretion in handling such requests.
Commercial Interests and Confidentiality
Moreover, the ability to neither confirm nor deny safeguards commercial interests and confidentiality. Businesses may invoke this principle to protect proprietary information, trade secrets, or contractual agreements, ensuring that disclosing such information does not undermine their competitive edge or contractual obligations.
Judicial and Administrative Proceedings
In judicial and administrative proceedings, the NCND principle is instrumental in preserving the integrity of legal processes. Confirming or denying the existence of certain documents or evidence could prejudice legal proceedings or compromise the administration of justice, necessitating careful consideration of disclosure.
The Public Interest Test
Ultimately, the application of neither confirming nor denying whether you hold information requires a delicate balance between transparency and the protection of sensitive information.
Even in circumstances where you can rely on neither confirming nor denying whether you hold the information, public authorities must weigh the public interest in disclosure against the imperative to safeguard essential interests, ensuring responsible decision-making in handling FOI requests.
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Conclusion
The option of neither confirming nor denying in FOI requests underscores the nuanced nature of transparency and accountability. By adhering to legal and procedural requirements and exercising discretion in disclosure, public authorities can navigate the complex terrain of FOI requests while upholding fundamental principles of governance and integrity.