FOIA Section 26 Exemption

Section 26: Defence

Section 26 applies to information whose disclosure would be likely to prejudice:

1. the defence of the British Islands or any colony; or

2. the capability, effectiveness or security of the armed forces of the Crown or any forces co-operating with them.

In order to determine whether section 23 applies it will be necessary to establish how exactly these defence matters would be prejudiced by disclosure of the information.

Key points:

• It will often be necessary to consult the Ministry of Defence in order to evaluate how and to what extent defence matters would be prejudiced by disclosure;
• Section 26 is subject to a public interest balance.

Official guidance

• DCA guidance: http://foi.gov.uk/guidance/exguide/sec26/index.htm (archived)
• Ministry of Justice guidance: http://www.justice.gov.uk/guidance/docs/foi-exemption-s26.pdf
• ICO guidance: Awareness Guidance 10 - the defence exemption (AG10)

What the law says

26 Defence

(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—

(a) the defence of the British Islands or of any colony, or

(b) the capability, effectiveness or security of any relevant forces.

(2) In subsection (1)(b) “relevant forces” means—

(a) the armed forces of the Crown, and

(b) any forces co-operating with those forces,

or any part of any of those forces.

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).

ICO Lines To Take

Relevant Lines to Take

LTT13 - Prejudice test - 05/01/2009

ICO Decision Notices

Complaints upheld / partly upheld (P)	Complaints not upheld
FS50089555 - Ministry of Defence - 17/11/2009 FS50089556 - Department for Business, Innovation and Skills - 15/10/2009 FS50093000 - Office of Government Commerce - 14/07/2008	FS50086426 - Cabinet Office - 31/03/2010 FS50089369 - Cabinet Office - 31/03/2010 FS50192677 - Ministry of Defence - 16/03/2010 FS50194621 - Ministry of Defence - 04/02/2010 FS50199188 - Ministry of Defence - 20/01/2010

Includes DNs up to: 26 April 2010

Equivalent exemptions in other countries

• Australia - Freedom of Information Act 1982 s33

Freedom of Information Act 2000

Exemptions

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