Latest updates - last updated 18 August 2023
18 August 2023 - We have added the Keeping internal consultations on FOI requests timely and transparent resource to the Further reading section.
21 December 2022 - We have updated this guidance to include examples of more recent decision notices and First-tier Tribunal decisions involving the application of regulation 12(5)(a).
About this detailed guidance
This guidance discusses regulation 12(5)(a) of the EIR in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide to the Environmental Information Regulations, or if you need a deeper understanding to help you apply regulation 12(5)(a) in practice.
- What does the EIR say?
- How do we establish if international relations are adversely affected by disclosure?
- How do we establish if defence matters are adversely affected by disclosure?
- How do we establish if national security is adversely affected by disclosure?
- How do we establish if public safety is adversely affected by disclosure?
- How do we apply the ‘neither confirm nor deny’ provisions?
- How do we consider the public interest test?
Regulation 12(5)(a) states that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect international relations, defence, national security or public safety.
Under regulation 12(6) a public authority does not have to confirm or deny what information it holds in response to a request if doing so would adversely affect one of the interests in regulation 12(5)(a).
All EIR exceptions, including the provision at regulation 12(6), are subject to the public interest test set out in regulation 12(1)(b). A public authority can only withhold information if the public interest in maintaining the exception outweighs the public interest in disclosing the information.
Regulation 12(2) specifically states that a public authority shall apply a presumption in favour of disclosure.
To engage regulation 12(5)(a), you must demonstrate that disclosing the requested information would have an adverse effect on at least one of the following interests: international relations, defence, national security, and public safety. As explained in ‘How exceptions and the public interest test work in the Environmental Information Regulations’ this sets a high threshold. It has to be more probable than not that the alleged harm would occur if the information were released. It is not enough to show that disclosure could or might have an adverse effect. The same principle and high threshold applies to regulation 12(6) and the refusal to confirm or deny whether information is held.
There is a significant overlap in the interests protected by regulation 12(5)(a). For example, if relations between the UK and an ally are harmed, this may also have implications for national security and defence. Similarly, if the disclosure of information endangers a piece of the UK’s infrastructure, this could harm both public safety and national security.
You do not need to worry about ascribing a particular threat to just one limb of the exception as it naturally accommodates these overlaps. However, when investigating a complaint, the ICO will expect you to fully articulate the reasons why one or more of the interests protected by regulation 12(5)(a) would be adversely affected.
The EIR do not define the term “international relations”. While this clearly covers relations between different states, it is not restricted simply to relations directly between the UK and another state. In the politically complex world, states often pursue their interests through membership of international organisations. The exception also protects the UK’s relationships with these organisations, which are an important means of defending and promoting the UK’s political, economic and other interests.
Therefore this part of the exception has the potential to cover a broad range of issues. For example:
- communications between public authorities in the UK and other states, international organisations or organs of other states
- the exchange of political views between states
- UK policy and strategic positioning regarding other states or international organisations
- diplomatic matters between states
- international trade partnerships
- international funding matters
- cases before international courts, and
- universities’ international relations and strategic alliances for research and attracting funding.
This list is not exhaustive. There may be other reasons why disclosing information would have an adverse effect on international relations.
Adverse effect on international relations
An adverse effect on international relations does not need to be measurable in terms of a tangible or material loss. Nor does it have to be immediate. The examples below shows this.
Campaign Against the Arms Trade v Information Commissioner and the Ministry of Defence (EA/2007/0040 26 August 2008).
This case concerned a request for a memorandum of understanding between the UK and the Kingdom of Saudi Arabia (KSA) about the sale of defence equipment. Although the request was not for environmental information, the findings about what may be deemed a prejudice to international relations are relevant to regulation 12(5)(a).
Maintaining strong relations with the KSA is important to the UK’s economy. The appellant argued that to demonstrate there would be an adverse affect on our relations with the KSA, it was necessary to show there was a risk of losing valuable defence contracts if the information was disclosed.
The Information Tribunal rejected this approach. It found that the exemption was engaged if the disclosure:
“… makes relations more difficult or calls for particular diplomatic response to contain or limit damage which would not otherwise have been necessary. We do not consider that prejudice necessarily requires demonstration of actual harm to the relevant interests in terms of quantifiable loss or damage.” (paragraph 81)
The First-tier Tribunal case David Holland v Information Commissioner and Department for Business, Innovation and Skills (EA/2012/0193, 26 July 2013) considered a request sent to the Met Office (MO) (now an executive agency of Department for Business, Energy & Industrial Strategy) for information held about a specific meeting of the Intergovernmental Panel on Climate Change (‘IPCC’). The MO confirmed that it held information within the scope of the request which included a draft document, which is the first stage towards preparing an assessment report (about the state of scientific understanding on climate change) known as a Zero Order Draft (ZOD). The MO refused the request, relying on various exceptions, including regulation 12(5)(a). The Commissioner’s decision notice upheld this position.
The Tribunal agreed with the Commissioner and found that if the withheld information were disclosed, there would be some adverse affect on the UK’s relations with the IPCC, so the exception under regulation 12(5)(a) EIR was engaged.
In reaching this conclusion, the Tribunal said: “There is nothing in the wordings of regulation 12(5)(a) that requires the adverse effect to be significant. It follows that even a modest adverse effect is sufficient to engage the exception.” (paragraph 53) The Tribunal also said
“... that it is not necessary to demonstrate actual harm or any quantifiable loss or damage and further that it is enough if it makes relations more difficult.” (paragraph 59)
Key factors affecting harm
The effective conduct of the UK’s international relations depends on maintaining the trust and confidence of other states and international organisations. This relationship allows for the free and frank exchange of information between the UK and its partners. In turn this allows the UK to effectively protect and promote its interests abroad.
You should therefore consider certain factors to determine whether disclosure of information would adversely affect international relations:
- The trust and confidence other states and international organisations have in the UK – whether disclosure of the requested information would undermine this.
- The content of the information – the more sensitive or candid the information is, the more likely that disclosure could be harmful.
- The context of the information – differences in culture and social customs, religion and the type of government of other states will be relevant. Disclosing potentially controversial information about one state may not have any material impact on international relations, but disclosing relatively bland information about a different state may have a significant impact.
- The broader effects of any disclosure – for example, disclosure of information may have a direct impact on the UK’s relationship with a particular state but could also have a wider impact on the UK’s relations in a particular region or with international organisations.
- The timing of the request – the sensitivity of information may diminish over time, but this is not always the case. Some matters, although historical, may still be ones where there is ongoing sensitivity in terms of the UK’s relations with another state. For example, information focusing on historical issues may still be relevant or have a direct impact on current UK foreign policy.
- The UK’s relations with states and international organisations – whether this has changed following the UK’s exit from the European Union.
In FER0713317 the Commissioner considered a request submitted to the Department for International Development (DFID) seeking a range of information about the building of an airport on St Helena. DFID withheld some information contained in a contract between the Government of St Helena (SHG) and the airport’s main contractor on the basis of the international relations limb of regulation 12(5)(a). DFID explained that SHG had explicitly asked it not to disclose the information. In light of SHG’s position, DFID argued that disclosure of this information would clearly adversely affect its relations with SHG. Moreover, it argued that disclosure of this information would be viewed by other governments as a lack of discretion and so lead to distrust, or at the very least a lack of confidence, in the UK’s ability to conduct international relations in an appropriate way.
Given SHG’s express request that DFID should not disclose the information in question, the Commissioner had no hesitation in accepting DFID’s argument that disclosure of the information would harm the UK’s relations with SHG. Moreover, given SHG’s position regarding this information, the Commissioner was also persuaded that there was a real and significant risk that if this information were disclosed under the EIR other states would question DFID’s, and thus the UK’s ability, to treat information they had shared with the UK on a confidential basis. So the Commissioner also accepted that disclosure risked having a wider harmful impact on the UK’s relations with other states.
In decision notice FER0608720 the Commissioner considered a request submitted to the Department for Energy and Climate Change (DECC) for correspondence between it and the European Commission (EC). The correspondence concerned the UK’s application to the EC for state aid clearance in respect of arrangements regarding the disposal of nuclear waste. Following its consideration of the case, the EC notified DECC of its approval of the proposed arrangements. On the same day of the notification, the requester sought a copy of the notification itself and a list of documents provided in support of it. DECC withheld this information on the basis of regulation 12(5)(a) and argued that disclosure would adversely affect the UK’s relations with the EC.
The Commissioner agreed and found that disclosure of the requested information at the time of the request would have made relations between the UK and EC more difficult and affected the ability of the two parties to work together. The Commissioner noted that a positive decision from the EC had only just been received so there was still a need to protect the confidentiality of communications between the two parties and protect their willingness to offer unfettered and detailed submissions for investigations of this nature. The Commissioner also noted that at the time of the request the EC’s official decision had not been published, was only in draft form and that the period in which proceedings could be brought to annul the decision had not yet expired.
The term ‘defence’ is not defined in the EIR. However, you should interpret the scope of the exception quite widely to provide similar protection for environmental information as the defence exemption, section 26, does in FOIA. This exception will therefore cover information that would adversely affect:
- the defence of the British Islands (which includes the UK, Channel Islands and the Isle of Man) or any colony, and
- the capabilities, security or effectiveness of British armed forces.
Harm to the defence of the British Islands
The need to maintain the defence of the British Islands and colonies is not restricted to a period of military activity. However, there is likely to be a difference between what is required for the defence of the nation in peacetime, during war preparations and during actual hostilities.
You should therefore consider what the defence of the nation may reasonably require at the time of the request before deciding whether the exception applies.
The defence of the nation is not limited to activities in British territories. The exception may also apply to activities overseas to prevent attacks being launched against British territories, for example activities abroad aimed at combating international terrorism.
The defence of the British Islands and its colonies does not solely relate to military operations. Information on infrastructure could also have implications for the UK’s defence. Currently the most realistic threat to infrastructure would be from terrorists, so these considerations are also relevant when considering the national security limb of this exception. However, you should not be overly concerned with ascribing a particular threat to one limb of the exception. The exception naturally accommodates these overlaps.
Harm to the capability, effectiveness or security of armed forces
The armed forces provide the means of directly engaging enemies of the UK and therefore anything that adversely affects the armed forces capabilities or effectiveness will also adversely affect the UK’s defence. This is regardless of any other role those forces are fulfilling or where such operations are being carried out. For example, if British armed forces were contributing to a UN peace-keeping mission, although there may not be any immediate threat to the UK, any harm to British forces would ultimately weaken the UK’s defence. Similarly, if British forces were cooperating with foreign forces, any threat to those forces would threaten British armed forces too. The adverse effect on the UK’s defence need not be immediate or direct.
The capability of the armed forces is affected by their equipment and supplies. It is conceivable that requests for information on supply chains, the specification of equipment or problems with it, or even information which, if disclosed, may threaten the continued production of equipment, may engage the exception.
In decision notice FS50883087 the Commissioner considered a request submitted to the Ministry of Defence (MOD) seeking information about the monitoring of the health and welfare of crew on nuclear submarines. The MOD disclosed some information but refused to disclose data that would identify the specific submarines on which individuals had served and the dates of their service under regulation 12(5)(a). This was on the basis that such information may reveal tactical data on submarine operations and so compromise current or future operations or the capability, effectiveness or security of British forces.
The Commissioner accepted that the exception was engaged as disclosure of the information would provide potential adversaries with an insight into the pattern and duration of patrols conducted by the UK’s submarine fleet.
You should not assume that the information covered by the exception will only be held by the Ministry of Defence or the armed forces. For example, emergency services and national health bodies will hold information about emergency planning that could have implications for the UK’s defence.
The term ‘national security’ is not defined in the EIR but the same language is used in other legislation, including FOIA, and has been considered in numerous tribunal and court decisions.
In Norman Baker v the Information Commissioner and the Cabinet Office (EA/2006/0045 4 April 2007), the Information Tribunal was guided by a House of Lords case, Secretary of State for the Home Department v Reham  UKHL 47, which considered whether the risk posed by a foreign national provided grounds for his deportation. The Information Tribunal summarised the Lords’ observations as follows:
- ‘National security’ means the security of the United Kingdom and its people.
- The interests of national security are not limited to actions by an individual which are targeted at the UK, its system of government or its people.
- The protection of democracy and the legal and constitutional systems of the state is part of national security as well as military defence.
- Action against a foreign state may be capable, indirectly, of affecting the security of the UK.
- Reciprocal cooperation between the UK and other states in combating international terrorism is capable of promoting the United Kingdom’s national security.
National security has many different aspects but the following example shows that relatively mundane environmental information about civil infrastructure could also be of use to terrorists and therefore could attract the exception provided by regulation 12(5)(a).
The First-tier Tribunal case Owen Boswarva v Information Commissioner and Environment Agency (EA/2020/0332 & 0333, 19 October 2021) considered requests submitted by the applicant to the Environment Agency (EA) for information about large raised reservoirs. The issues to be decided by the Tribunal focused on the EA’s position that disclosure of detailed datasets about maximum flood outlines, depth and speed would endanger national security and public safety.
The Tribunal accepted that in principle “release of detailed information about large reservoirs would adversely affect national security or public safety. This is because this information can be used as the basis for a terrorist attack, which would put the public in serious danger.” (paragraph 30).
It went on to conclude that regarding the information in question, disclosure would have this adverse affect because such “a level of detail… would endanger national security and public safety due to the risk of terrorist attack. EA have provided an explanation of their position, and we have no reason to doubt that explanation. Put simply, we accept that detailed data about how the maximum flood outline for a large reservoir has been calculated could be used by those intent on causing harm to the public in order to cause a catastrophic flood.” (paragraph 31)
In other cases the threat to national security if environmental information is disclosed is more obvious.
In FS50117924 the Commissioner considered a request made to the UK Atomic Energy Authority (UKAEA) for information relating to the storage and safety of nuclear materials. UKAEA were concerned that disclosure of the information would enable terrorists or other attackers to gain access to fissile and special nuclear material which would allow them to threaten the UK in a number of different ways. The Commissioner accepted that disclosure of the withheld information would s assist those wishing to steal material for use in a so-called dirty bomb and as result disclosure of the information would adversely affect both public safety and national security.
There is often an overlap between national security and international relations. This is because the UK’s national security depends, in part, on cooperation with allies, as well as the UK’s ability to resolve conflicts diplomatically rather than using force. Similarly, there is also often an overlap between national security and defence as harm caused to the UK’s military capability is likely to harm the UK’s national security.
The threat to national security does not have to be immediate
It is not necessary to show that disclosing the information would lead to a direct or immediate threat to the UK.
Lord Slynn in the Secretary of State for the Home Department v Rehman  UKHL 47 found that:
“To require the matters in question to be capable of resulting ‘directly’ in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse effect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate.”
This concept is particularly relevant if you are concerned that disclosure would damage the UK’s relations with another country. This, in turn, could frustrate cooperation against terrorism, for example by reducing or preventing the sharing of intelligence. This would leave the UK more vulnerable to attack.
Alternatively, it may be that the disclosure would hinder attempts to improve relations with a country that could be an ally in the fight against terrorism in the future. In such cases it may not be possible to identify all the benefits that might have arisen if the requested information had not been disclosed, but you will need to explain why fostering good relations with that country is important to national security.
Maintaining national security is not only about protecting current targets. This point is discussed in more detail in the FOIA guidance on section 24 and shown by the example below.
In the ICO decision notice FS50308040, the Commissioner considered a request to West Yorkshire Fire and Rescue Service (WYFRS) for the details of its fleet of vehicles. WYFRS operated the National Control Centre for fire and rescue services, which coordinates incidents of national significance. The request had been refused on national security grounds. WYFRS argued that disclosing the information would provide sufficient information for someone to clone its vehicles. This would provide a means for its headquarters to be infiltrated.
Although there was no evidence presented that an attack was being planned, the Commissioner accepted that the control centre was a realistic target and that the explanation of how the information could be used was plausible. Therefore the Commissioner found s24(1) was engaged.
The ‘mosaic’ argument
It is accepted that terrorists can be highly motivated, potentially well resourced and may go to great lengths to gather intelligence. This means you may have grounds for withholding seemingly harmless information on the basis that it could assist terrorists when pieced together with other information they possess or could obtain. This principle can be demonstrated by a request made under FOIA for non-environmental information.
In FS50368290 the Commissioner considered a request to the Metropolitan Police Service (MPS) for the previous year’s cost of the Royal Protection Unit. The police argued that the information could be compared to other information, in the public domain, and that this would provide terrorists with intelligence on the relative vulnerabilities of members of the Royal family. The Commissioner acknowledged that the requester had argued that the withheld information was insignificant in the context of national security. However, the Commissioner concluded it was necessary to consider the potential value of the withheld information in the hands of those who constitute a threat to national security. In view of this, and the MPS’s examples of how publicly available information is a powerful source of intelligence for those wishing to target the security of the UK, the Commissioner concluded that the information was exempt from disclosure on the basis of section 24(1) of FOIA.
Unlike section 23 of FOIA, which provides a class-based exemption for named security bodies such as the Security Service (MI5), there is no specific exception for information about security bodies under the EIR. However, by the very nature of the work that security bodies do, much of the information supplied by them or about their work will have national security implications.
If you want to withhold such information, you will still need to explain how the disclosure would adversely affect national security or one of the other limbs of regulation 12(5)(a).
It is recognised that acknowledging whether the requested information is held can reveal if a security body is involved in a particular issue and that this could be damaging to national security. Regulation 12(6) caters for this by allowing you to respond to a request by neither confirming nor denying that information is held. The application of regulation 12(6) is discussed in more detail later.
Regulation 15 allows a Minister of the Crown (or a person designated by a Minister) to certify that disclosing the requested information would adversely affect national security and that the public interest favours withholding the information. This type of certificate is conclusive evidence of the adverse effect and the balance of the public interest.
These certificates can only be issued in respect of national security, not as conclusive evidence of an adverse effect on the other interests described in regulation 12(5)(a).
ICO’s approach to defence and national security complaints
When investigating complaints, in most cases the ICO will need access to the withheld information to inform its decision. This includes cases when regulation 12(5)(a) has been applied on the basis of harm to defence or national security. However, if you regularly handle this kind of information, you will have staff with significant expertise in defence and national security issues. In exceptional circumstances the ICO may consider whether it can reach a decision based on submissions or confidential discussions, or both, from such staff, rather than having access to the withheld information. The description of the information in the request itself is likely to be relevant in this case.
The term public safety is not defined in the EIR. But in broad terms this limb of the exception allows you to withhold information if disclosure would result in hurt or injury to a member of the public. It can be used to protect the public as a whole, a specific group, or one individual who would be exposed to some danger as a result of the disclosure.
The hurt or injury could be to the physical or mental health of those affected. Endangering mental health implies that the disclosure of information might lead to a psychological disorder or make mental illness worse. This means it must have a greater impact than causing upset and distress.
You may find it difficult to demonstrate a danger to mental health without obtaining an expert opinion confirming that the disclosure of the information would affect a person’s mental health. However, the ICO considers that clinical evidence of a psychiatric condition is not always necessary.
The Information Tribunal case Andrew Lownie v the Information Commissioner and The National Archives and The Foreign and Commonwealth Office EA/2017/0087 (12 July 2018) concerned a request for a closed file held by the National Archives (TNA) that was part of the collection about the Guy Burgess and Donald Maclean spy ring.
TNA refused to disclose the requested information, relying on section 38(1), the health and safety exemption in FOIA, and section 24(1) the national security exemption. In FS50654519, the Commissioner upheld TNA’s refusal, agreeing that section 38(1) was engaged and that the public interest favoured non-disclosure. The Commissioner took the view that there was a risk of mental “distress” to living relatives and that this would be sufficient to meet the requirements of section 38.
However, the Tribunal concluded that:
“Whilst distress can be a trigger leading to mental ill-health, we do not consider that distress in itself should be equated with mental ill-health for the purposes of s.38. A healthy or unhealthy person may experience distress without suffering any, or any additional mental ill-health.” (paragraph 49)
The Tribunal stated that a risk was not the same as a specific danger. In finding that the degree of probability was insufficient, the Tribunal judged that section 38 was not engaged.
Even though you may not need to seek expert evidence from health professionals about the risk to mental health, you will still need to explain your grounds for believing such a risk exists. Unsubstantiated speculation that a risk exists will not be a sufficient basis to rely on the exception.
Although stress is not sufficient for regulation 12(5)(a) to apply, it may be an issue to consider under regulation 13 when deciding if the disclosure of personal data would be fair.
Types of information likely to be covered
A range of information could be exempt from disclosure on the basis of regulation 12(5)(a), such as:
- details about systems designed to protect public safety
- material identifying individuals who might be targeted as a result of disclosure
- details about potential targets for terrorists, and
- information that would undermine the security of particular establishments, operations or infrastructure.
The examples below provide details of specific cases where the application of regulation 12(5)(a) has been considered on the basis that disclosure would adversely affect public safety.
In IC-46369-P6D6 the applicant sought a copy of a local council’s business continuity plan regarding its waste functions. It provided some parts of the plan but withheld other parts on the basis that disclosure would harm public safety. The Commissioner accepted that disclosure of the information would allow individuals or
groups to undermine the council’s responses to emergencies in some circumstances, so this exception was engaged.
In FER0820729 the applicant asked Transport for London (TfL) for a copy of engineering reports and risks assessments for Rotherhithe tunnel. TfL argued that disclosure of the information would adversely affect both public safety and national security as it would assist those who might wish to attack the tunnel. The Commissioner accepted that regulation 12(5)(a) was engaged, given the content of the information and previous instances of transport hubs and infrastructure being targeted by terrorists.
In IC-122093-M2Z1 concerned a request to High Speed 2 (HS2) for the locations where woodchips from HS2’s de-vegetation were sent. HS2 argued that disclosure of the information would reveal the names of organisations to which it provided woodchips for biomass heating. It argued that this would severely adversely affect public safety by increasing the likelihood of protests and violent behaviour at their sites and/or towards those companies or persons doing this work. The Commissioner accepted that the regulation was engaged on this basis.
The case involving TfL demonstrates the close link that can exist between national security and public safety.
How do we apply the ‘neither confirm nor deny’ provisions?
Normally under the EIR you have to confirm or deny whether you hold the requested information. However, it is different for the interests protected by regulation 12(5)(a). Regulation 12(6) allows you to refuse to confirm or deny whether you hold the requested information, if doing so would adversely affect international relations, defence, national security or public safety. This is often referred to as ‘neither confirming nor denying’ (NCND) that the information is held.
How regulation 12(6) works
It is not necessary to show that both potential responses would have an adverse effect on the interests protected by regulation 12(6). It is sufficient to demonstrate that either a confirmation or a denial would do so.
Furthermore you are not restricted to only considering the consequences of the actual response that you would have to provide. For example, if you do hold the information, you are not limited to only considering what would be revealed by confirming that you hold the information. You can also consider what would be revealed by a ‘hypothetical’ denial that you held the information.
How requests are phrased
The way a request is phrased will often have an important bearing on how the NCND provision is used.
In decision notice IC-46074-B721 the Commissioner considered a request to the Cabinet Office seeking information held by the National Resilience Capabilities Programme or the National Security Council: Ministerial Sub-Committee on Resilience on the subject of climate change.
The Cabinet Office refused to confirm or deny whether it held any information, citing section 24(2) (national security) of FOIA and regulation 12(6). The Cabinet Office explained that information created by the sub-committee referred to in the request dealt with high-level, very sensitive and important matters regarding the country’s security and resilience. It argued that confirming whether or not this information was held would imply the perceived importance of this subject in the context of national security.
The Commissioner accepted that confirmation or denial as to whether the information described in the request was held would reveal the extent to which this subject had been considered as a matter relevant to the work of the committee. The Commissioner also agreed that avoiding doing so was required to safeguard national security because it avoided identifying what is, and is not, seen as a national security priority. The Commissioner accepted that this would make it easier for “hostile actors” to identify strategic weaknesses in the UK’s national security. On this basis the Commissioner concluded that both section 24(2) and regulation 12(6) were engaged.
It may also be appropriate to NCND that information is held when requests identify particular safeguards or security measures.
In decision notice FS50836455 the Commissioner upheld a decision by the Greater London Authority (GLA) to NCND whether it held information about whether the Mayor, Sadiq Khan, had an official car and if so the costs of providing it.
As this was not environmental information, GLA applied section 38(2) of FOIA. This was on the basis that confirming whether or not GLA held the information would reveal what type of transport the Mayor may, or may not, regularly use. Such a statement could then be used by determined individuals to locate and potentially target any vehicles that the Mayor may or may not use and thereby endanger his wellbeing and physical safety.
It is easy to transfer this principle to requests for environmental information on security or safety measures. For example, confirming what security measures are adopted in the management of radioactive waste could render such operations more vulnerable to attack, which in turn could adversely affect public safety.
Use of regulation 12(6) to avoid establishing patterns to responses
If you are likely to receive numerous similar requests, you need to make sure that you consistently refuse to confirm or deny when responding, because a failure to do so could be harmful.
A hypothetical request is made to the Home Office for information obtained by MI5 through its alleged infiltration of the anti-nuclear movement. If MI5 had not infiltrated the anti-nuclear movement, the public authority may be tempted to simply explain that no information is held.
However, if MI5 did then take an active interest in the movement at a later date, and the Home Office held information to confirm this, it could no longer respond by stating that information was held. Instead it would have to fall back on regulation 12(6) to NCND that it held the information. This change in approach would itself signal a change in MI5’s activities.
This could be avoided by the Home Office applying regulation 12(6) when the first request was received and then doing so consistently for any later requests.
Regulation 12(6) would apply to both requests because denying the information was held would reveal that MI5 had not infiltrated the anti-nuclear movement, whereas confirming that the information was held would obviously reveal that MI5 had infiltrated the movement.
ICO’s approach to complaints
As a general rule, the ICO will be able determine whether the NCND provision in 12(6) is engaged without knowing whether the requested information is held.
As with all the exceptions under the EIR, regulations 12(5)(a) and 12(6) are subject to the public interest test in regulation 12(1)(b). The public interest is discussed in detail in ‘How exceptions and the public interest test work in the Environmental Information Regulations’. However, there are several points of particular relevance for regulations 12(5)(a) and 12(6).
The importance of protecting national security
There is an obvious and weighty public interest in safeguarding national security. This does not remove the need for you to fully consider the public interest in the disclosure of information that would adversely affect national security. However, it does mean there will have to be compelling public interest arguments in favour of disclosure before you release information that would compromise the UK’s national security.
International relations and the public interest in respecting confidences
Campaign Against The Arms Trade v Information Commissioner and Ministry of Defence (EA/2007/0040 26 August 2008) involved a memorandum of understanding (MoU) between the UK Government and the Kingdom of Saudi Arabia (KSA) that had been withheld under sections 27(2) and (3) of FOIA. In broad terms those sections relate to information obtained in confidence from another state. The Information Tribunal established that KSA had an expectation that the details of the MoU would remain confidential and found that the exemptions were engaged.
When looking at the public interest in maintaining those exemptions, the Tribunal found that:
“Parliament recognised and we accept that there is an inherent disservice to the public interest in flouting international confidence. …. that confidence continued to apply to both MoUs and disclosure would have been seen as reneging on or flouting the basis upon which that information was obtained and the MoU entered. We regard that as a matter of significant weight in the context of international comity and relationships.” (paragraph 95)
The example shows the importance placed on respecting another state’s expectations of confidentiality, to maintain international relations and diplomacy. The impact of disclosures under the EIR or FOIA would extend beyond any immediate effect on the relationship between the UK and the confiding country. Disclosing such information would give the impression that the UK government could no longer be trusted with confidential information, which could affect the UK’s relations with the international community more generally. There is therefore an inherent public interest in preserving international confidences.
- Guide to the Environmental Information Regulations
- How exceptions and the public interest test work in the Environmental Information Regulations
- When to refuse to confirm or deny information is held
- National security (section 24)
- Defence (section 26)
- International relations (section 27)
- Health and safety (section 38)
- Internal consultation resource - Keeping internal consultations on FOI requests timely and transparent