Chapters: 01 | 02 | 03 | 04 | 05
3.1 Section 23 is an absolute exemption. This means that there is no requirement in the Act to assess the prejudice that could be caused by disclosure, nor any requirement to consider the public interest in disclosure. It is also the case that it applies regardless of the effect, specific or general, of the disclosure in question. Section 23(5) provides an exemption to the duty to confirm or deny whether the information requested exists (section 1(1)(a)). Officials should bear in mind that acknowledging that no information supplied by or relating to any of the Security Bodies is held may in itself constitute information about one of the Security Bodies, and that in some circumstances it may be appropriate to apply the 'neither confirm nor deny' provisions under section 23(5) even when no information is held.
3.2 While there is no right of access under the FOI Act to information supplied by or relating to the Security Bodies it may still be possible to disclose information, quite separately from the Act, if disclosure is officially authorised. But it remains important that the disclosure of any information that could be covered by section 23 (including historical records) takes into account other relevant legal considerations, and that the decision is taken after consultation with the respective legal and security experts.
3.3 Officials need to bear in mind that in order for information to come within the scope of section 23, it does not have to have been supplied directly to a department by one of the Security Bodies. The exemption also applies where information originated with a Security Body but was supplied indirectly to a department (e.g. having first passed through another department).
3.4 Although the identification of information supplied by or relating to the Security Bodies may be straightforward in the majority of cases, this may become less clear when it is used by recipients (for example, where a department draws on information provided by a Security Body to produce its own reports or documents).
3.5 It is therefore necessary to consider how best to indicate the origin of source material. This may be difficult to achieve where historic information is involved, but departments which receive and use information from the Security Bodies should adopt procedures for annotating documents in a way that will confirm the relevance of section 23.
3.6 The Act does not specify how remote from the original source information needs to be before it is no longer to be regarded as "directly" or "indirectly supplied" by, or that it relates to, one of the Security Bodies. However, if it is possible to trace a discrete piece of information back through each transmission to its original source, then this would seem to be sufficient, however many hands it has passed through and even if its wording has changed along the way.
3.7 When considering whether to apply the exemption, thought should always be given by officials as to the explanation for the decision. This explanation will be carefully examined by the Information Commissioner or the Information Tribunal in the event that the refusal to provide the information sought is challenged. It is not necessary to obtain a signed Ministerial certificate to claim the exemption (see discussion of certificates below) but careful consideration should be given as to how a case would be made to a Minister were a certificate needed later.
3.8 It is also important to note that where information requested only partly derives from, or relates to, the Security Bodies and is thus exempt under section 23, the remainder of the information will be subject to the right of access under the Act (and any other applicable exemptions).
3.9 It will often be necessary to consult the Security Bodies for their views on how a request should be answered. It may be appropriate that the originator of the document consults with their contact directly. If the originator of the document is not known, or if officials are unsure whether to withhold or release security information they should contact their departmental security officer, who will be able to advise on the appropriate course of action.
3.10 The section 23 exemption applies to all records, regardless of their age, including historical records, except that for historical records held by the National Archives or the Public Record Office of Northern Ireland section 23 ceases to be an absolute exemption after 30 years. The sensitivity of section 23 information may diminish with the passage of time once the record in which the information is contained has become an historical record. Each instance should be judged on a case by case basis, consulting as appropriate.