Chapters: 01 | 02 | 03 | 04 | 05
3.1 Section 26 is not an absolute exemption. In order to decide whether information should be disclosed or withheld officials will therefore firstly need to assess the prejudice that could be caused to defence matters, and then whether the public interest in disclosing the information outweighs the public interest in avoiding that prejudice. Section 26(3) exempts departments from the duty to confirm or deny holding the information if this would be likely in itself to prejudice the considerations mentioned in 26 (1).
3.2 The range of disclosures which could prejudice UK defence matters is potentially broad. At any time of tension or conflict, it would clearly be contrary to UK interests to disclose information that could materially assist a potential enemy. While this concern will not be so obvious or immediate in peace time, the confirmation of certain defence plans, organisational or support matters could nonetheless allow a potential adversary (including a terrorist group) to gain an advantage that would be contrary to the defence interests of the UK. This could undermine the defence arrangements for the UK or any colony, or have an adverse impact on the capability, effectiveness or security of military or other personnel fulfilling a defence role.
3.3 If officials are considering using the section 26 exemption in relation to a particular request it is important that they first consider how exactly the defence matters mentioned in section 26(1) would be prejudiced, or would be likely to be prejudiced. The risk that a prejudicial outcome would occur has to be more than fanciful, but need not be probable. The type of potential prejudice and the size of the risk of that prejudice occurring are interrelated. The public authority, when deciding whether the information in question is exempt under section 26, must assess the kind of harm that may result from disclosure and the risk of that harm materialising.
3.4 General factors to take into account when deciding whether disclosure would have a prejudicial effect on defence include:
Security classifications: The fact that a document carries a security classification does not mean that the exemption applies to all, or any, of the information contained in it, though it may be an indication that use of the exemption should be considered. The purpose of a security classification is to indicate the highest classification applicable to the contents of a document (or part of a document) at the time it was created. The protective marking of a document may relate to matters other than defence (for example national security or international relations), or it may no longer be warranted due to the passage of time or events. In addition, the security classification may not be relevant to the entire contents. Officials should consider each request on its merits and therefore assess the specific information that has been requested and any prejudice associated with its disclosure at that time to establish whether use of the exemption is appropriate.
The source of information: Some defence information will have originated from the Special Forces or one of the other security bodies named in section 23 of the FOI Act, in which case it may be appropriate to cite the section 23 exemption which is not dependent upon potential prejudice or the public interest test. Equally, defence information may be confidential information received from another state, in which case it may be more appropriate to consider the exemptions at section 27. The exemption for information supplied in confidence (section 41) is an absolute exemption, but subject to its own considerations of the public interest.
In some cases, release of information that relates to defence may not run the risk of harming the defence of the British Isles, but it may prejudice the UK's relations with another State or any of the other matters in section 27 (1)(a) - (d), and so fall within the scope of section 27 (1). The application of section 27 should always be considered where the information touches upon matters relating to the UK's interests abroad, including its defence interests.
Other information already in the public domain: Individual requests for information must be considered on their merits but officials should take account of what is already in the public domain (either in the UK or overseas) when assessing prejudice to defence matters. The fact that information has already been published may reduce or negate any potential prejudice (and section 21 may be relevant in this context). However in some circumstances it could give rise to prejudice that would not otherwise have existed - because, taken together with the information requested, it could disclose a composite of information which is more sensitive than its individual parts taken separately. Officials may need to consider how the information came to be in the public domain as defence matters might be prejudiced by officially disclosing, and therefore confirming information, which has previously only been the subject of an unauthorised or unattributable report or as a result of speculation.
Timing: The sensitivity of information will often be dependent on the timing of a request and the age of the information. For example, while information about a specific operation might prejudice operational effectiveness if it were to be made public at the planning stage, the concern about disclosing some or all of the information is likely to diminish or disappear after the operation has taken place.
3.5 Specific examples of disclosures likely to prejudice the matters in section 27 (1) include:
This is not intended to be an exhaustive list. What brings the information within the scope of this exemption is that its putative disclosure is likely to prejudice matters relating to defence. Identification of the kind of harm likely to result from disclosure together with an assessment of the size of the risk of such harm occurring is required to decide upon the likelihood of prejudice.
3.6 Before withholding defence information, which it has been decided is likely to prejudice one of the matters in subsection (1)(a) or (b), officials must assess, in all the circumstances of the case, whether the public interest in having the information disclosed outweighs the public interest that would be protected by non-disclosure. The public interest in avoiding prejudice to defence matters is strong and in most cases, will tend to outweigh the public interest in disclosing such information. However, where the risk of prejudice has been assessed as being minimal, or where the harm that is likely to result is of a trivial nature, or where the public interest in disclosure is itself particularly strong, this may tip the public interest balance in favour of disclosure.
3.7 There is widespread interest in defence policy and the activities of the armed forces, and it is appropriate for the public to understand how and why key decisions are taken in these areas. The public interest will therefore be strong in relation to the disclosure of information that will inform debate and improve public understanding. Examples might include the disclosure of information relating to concerns on matters such as:
3.8 On the other hand, the public interest is likely to weigh against the disclosure of defence information if this could undermine the conduct of a specific military operation or have an adverse impact on security or safety. In addition, the disclosure of information in the face of an objection from an allied country, or in breach of a clear undertaking to preserve confidentiality, may well prejudice the UK's defence relations by restricting exchanges of information or by jeopardizing military co-operation.
3.9 In every case (and notwithstanding the weight of the public interest in maintaining the exemption in respect of information likely to prejudice the section 26 matters) the public authority in receipt of the request will need to analyse the risk of damage to the public interest, be able to articulate what it is and how it is best served by withholding the information in question.
3.10 Departments and agencies that deal with sensitive defence information are likely to have specific clearance procedures that have to be followed when dealing with requests. Officials must comply with any such procedures. For example, they still have to follow instructions for downgrading information agreed for release that was previously marked with a security classification. Section 44 of the Act preserves existing statutory prohibitions on disclosure, and officials should note that the unauthorised and unlawful disclosure of information could, in some cases, be a criminal offence.
3.11 The majority of requests for information about defence matters are likely to be directed to the Ministry of Defence (MOD). However, some other government departments and public authorities will also hold information relating to defence matters (for instance emergency planning), or information whose disclosure might have an impact on defence (for example information about levels of tension between other states; or information about the procurement or capabilities of defence equipment). It will generally be good practice to consult MOD officials about the impact of any disclosure to which section 26 has potential application. This will be particularly appropriate if the information originated from the MOD; if it is unclear whether the information has previously been disclosed; or if the same or similar information may also be held by the MOD or other public authorities.
3.12 This consultation is within the spirit of the Code(s) of Practice issued under section 45 of the FOI Act and regulation 16 of the EIR. But, final responsibility for deciding how to respond will rest with the public authority that received the request.
3.13 Section 26 applies to all recorded information, including that in records over 30 years old.