The exemptions under sections 23 and 24 are extremely closely linked. The
section 23 exemption is applicable to information received from or related
to a number of bodies specifically listed in the Act. The section 24 exemption
is applicable to information the non-disclosure of which is necessary to
safeguard national security. In certain circumstances it will be necessary
to use the two exemptions together. In other circumstances the two exemptions
are mutually exclusive and cannot be used together. Further details are
given below. Accordingly this chapter should be read together with the chapter
on section 24 when contemplating withholding information on grounds related
to national security. Annexes A, B and C to the section 24 chapter are equally
relevant to this chapter. For guidance on the inter-relationship between
the FOI Act and the Official Secrets Act 1989 see the chapter on the section
44 exemption concerning prohibitions on disclosure.
Stating the exemption
Section 23 of the Freedom of Information Act provides that:
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).
A certificate signed by a Minister of the Crown certifying that
the information to which it applies was directly or indirectly supplied
by, or relates to, any of the bodies specified in subsection (3) shall,
subject to section 60, be conclusive evidence of that fact.
The bodies referred to in subsections (1) and (2) are-
(a) the Security Service,
(b) the Secret Intelligence Service,
(c) the Government Communications Headquarters,
(d) the special forces,
(e) the Tribunal established under section 65 of the Regulation
of Investigatory Powers Act 2000,
(f) the Tribunal established under section 7 of the Interception
of Communications Act 1985,
(g) the Tribunal established under section 5 of the Security Service
Act 1989,
(h) the Tribunal established under section 9 of the Intelligence
Services Act 1994,
(i) the Security Vetting Appeals Panel,
(j) the Security Commission,
(k) the National Criminal Intelligence Service, and
(l) the Service Authority for the National Criminal intelligence
Service.
In subsection (3)(c) "the Government Communications Headquarters" includes
any unit or part of a unit of the armed forces of the Crown which
is for the time being required by the Secretary of State to assist
the Government Communications Headquarters in carrying out its functions.
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 to the public authority by, or relates to,
any of the bodies specified in sub section (3).
General points
1.1 As the Security Bodies are not 'public authorities'
for the purposes of the Act, they are not under any duty themselves to disclose
information; it is only information supplied by them to departments, or
information which relates to them and held by departments, which needs to
be, and is, addressed by section 23.
