Line to take - LTT64 - Neither confirm nor deny

• FOI/EIR: FOI
• Section/Regulation: s24, s27, s30, s31
• Issue: Neither confirm nor deny
• Source: Information Tribunal
• Details: Baker / Cabinet Office (12 February 2007)
• Related Lines to Take: Awareness Guidance 21
• Related Documents: EA/2006/0045, FS50086063
• Contact: EW
• Date: 07/08/2007
• Policy Reference: LTT64
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

In certain cases confirming or denying that requested information is held can itself reveal exempt information. In such cases, it will generally be in the public interest to use a neither confirm nor deny response consistently. It should be possible to make a decision on this without knowledge of whether the information is in fact held.

Further Information

In the case of Baker v the Information Commissioner and the Cabinet Office, the Tribunal ruled that the ICO was right to decide that the Cabinet Office’s refusal to confirm or deny whether it held requested information was in accordance with the Act. The complainant in this case had requested (in part) information about the number of MPs subject to telephone tapping or other surveillance since the Wilson Doctrine was set out.

The Cabinet Office refused to confirm or deny whether it held such information in by virtue of s24(2). The Tribunal quoted the director of Security and Intelligence at the Cabinet Office to explain why this was in the public interest:

“If any particular category of people were engaged in activities that were damaging to national security and the Cabinet Office effectively announced that no interceptions had taken place in relation to that category, any person in that category could continue his or activities safe in the knowledge that they were not subject to interception and by extension under investigation [...]

“Conversely if a particular category of people were engaged in activities which were damaging to national security and the Cabinet Office announced that a certain number of telephones had been tapped, such an announcement would effectively act to alert that person to avoid certain forms of communication to help escape detection.”

In summary, the Tribunal stated that, “The use of a neither confirm nor deny response on matters of national security can only secure its purpose if it is applied consistently.” (para 48)

The key point here is that knowing that any number of MPs or that no MPs were under surveillance would be of significant interest (and would or would be likely to endanger national security).

That this fact is significant can be determined by reference to the question itself, and it is for this reason that NCND is the appropriate response. This approach can be adopted in other cases where different exemptions may apply. Example requests of this kind might be for:

• Information regarding the investigation you are conducting into Company X.
• All information held concerning the disciplinary proceedings against Persons A, B and C.
• Minutes from meetings at which sanctions against Country Z were discussed.

It is important to note that a NCND response will not be required where the fact that investigations into a named person, etc. are taking place are already in the public domain.

Decisions on cases of this kind can be determined by reference to the public interest in consistency of use of neither confirm nor deny rather than to the actual information itself (if it exists). The existence or otherwise of a piece of information should not be a factor in determining the public interest in respect of neither confirming nor denying when the nature of the request is such that it is clear that a confirm or deny response would itself reveal potentially exempt information. This was the approach taken in the Baker case. It should be emphasised that this approach is only appropriate in cases such as the ones described here, and should not be adopted for all NCND cases.