FOI/EIR FOI Section/Regulation s24 Issue Required for purposes of national security
Line to take:

The section 24 exemption only applies where the exemption itself is required for the purpose of safeguarding national security. The word required in this context means reasonably necessary. In effect, there has to be a risk of harm to national security, but there is no need to prove that there is a specific, direct or imminent threat.

Further Information:

Required for the purpose of safeguarding national security

The verb 'require' is defined in the Oxford English Dictionary as ‘to need something for a purpose’. Given the close link between information rights and Human Rights it is  appropriate to consider the case law on the article 8(2) word  ‘necessary’, where interference may be justified when it is necessary in a democratic society in the interest of national security’. The European Court of Human Rights has explained the adjective necessary as something which “is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’”. The necessity test is well defined in the Convention jurisprudence and equates with a pressing social need. Necessity is something less than absolutely essential, but does connote a degree of imperative.

The meaning of “required” and the necessity test was illustrated in the Commissioner’s decision in FS50074788. This case concerned a request for the information held by the Northern Ireland Office which led the Chief Constable to attribute the Northern Bank robbery to the Provisional IRA. The NIO relied upon the section 24 exemption to withhold some of the information caught by the request. The issue was around the timing of the information request, the fact that the police investigation into the bank raid had just begun and its impact on the NI peace process. The Commissioner found that the disclosure of the relevant information, given the sensitivities, posed a real threat to national security and therefore s24 was engaged.  He was satisfied that “in this context it means something more than desirable, in effect it must be necessary to apply this exemption ‘for the purposes of safeguarding national security’” (para 30). He also said that at the time of the request “the exemption was ‘required’ for the purposes of safeguarding national security. That is because the Commissioner considers that to disclose this information at the time of the complainant’s request would have been a risk to national security”.

The Commissioner also considered the meaning of the wording in the s24 exemption in FS50178276. The complainant had requested information held by the public authority as to how a plot to hijack passenger planes and fly them into targets in London had been averted by the CIA. The case concerned the refusal of the public authority either to confirm or deny whether it held any such information, citing several exemptions including s 24(2). Although the Commissioner decided that the exemption was not engaged specifically for NCND purposes, he did consider the meaning of the word “required”: “the approach of the Commissioner is that required in this context means reasonably necessary. It is not sufficient for the information sought simply to relate to national security; there must be a clear basis for arguing that disclosure would have an adverse effect on national security before the exemption is engaged”.

The Information Tribunal supported the Commissioner’s line in: Kalman v the Information Commissioner and the Department for Transport (EA/2009/0111, 6 July 2010). In this case, the complainant had requested information relating to the security screening of passengers and security staff at UK airports. The Information Commissioner agreed that the public authority correctly withheld some information under section 24, but ordered the disclosure of other information. The Tribunal found that section 24 was engaged in respect of some information, upholding the Information Commissioner’s approach to the interpretation of section 24 and stating: “From the wording of Section 24 FOIA the information* has to be “required” for the purposes of safeguarding national security. The Commissioner argued and it was not disputed by the other parties that “required” means “reasonably necessary”; and it is therefore not sufficient that the information sought simply relates to national security. The Tribunal adopts this approach.”

* However please note that the Tribunal made an error in stating that the “information” has to be required for the purposes of safeguarding national security. For s24 to be engaged, it is the exemption (rather than the information) that must be required to safeguard national security. The focus of section 24 is therefore on the effect of disclosure rather than the original purpose of the information.

To what extent is the exemption required to safeguard national security?

The Commissioner’s view concerning the degree to which the exemption is “required for the purpose of safeguarding national security” has evolved with experience in applying FoIA to specific circumstances. He had previously taken the view that for the exemption to apply, there must be evidence of specific and real threats to national security. He now accepts that that threshold was too high and that there does not need to be evidence of a direct or imminent threat.

The Commissioner has drawn on the approach set out by the House of Lords in a non-FOI case: Secretary of State for the Home Department v Rehman (Lord Slynn at para 16):

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 affect 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“. He added: “If an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the United Kingdom.”

The meaning of “national security”

This term is not defined in any statute or judicial decision, but in the Rehman case the House of Lords made useful observations on its meaning. Please see LTT54.

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Source Details

Decision Notices,

Information Tribunal decision

House of Lords judgement

FS50074788, FS50178276

Kalman v Information Commissioner & the DfT

Secretary of State for the Home Department v Rehman (11 October 2001)

 

Related Lines to Take
LTT54
Related Documents

FS50074788, FS50178276, EA/2009/0111 (Kalman), [2001] UKHL47 (Rehman)

MOJ Guide to Data Sharing Legal Guidance Nov 2003

Contact RM / VA
Date 11/03/2011 Policy Reference

LTT68