January 2013

Request:

My query relates to the use of Sections 23 (5) and Section 24 (2) of the Freedom of Information Act and the release of files under the 30 year rule in 2012. Can you clarify how many files put forward for review for release in 2012 were exempt under these sections.

Your colleagues in the Department of Culture, Arts and Leisure (DCAL) in Northern Ireland - who oversee the Public Records Office in NI - recently told me that files put forward for review for release under the 30-year rule would not be listed in their list of released files if they were exempt under Sections 23 (5) and 24 (2) of the Freedom of Information Act. These exemptions allow public bodies to neither confirm nor deny the existence of information. Just to clarify, I take it this also applies to the National Archives?

Can you confirm for me how many files, submitted for review for release in 2012 under the 30-year rule, were exempt under Section 23 (5) and 24 (2).

Outcome:

No information held

Response:

The Freedom of Information Act gives you the right to know whether we hold the information you want and to have it communicated to you, subject to any exemptions which may apply.

The information that you requested is not held at The National Archives. Please see below an explanation as to why this information is not held. Also in answer to your second question, how the 23 and 24 exemptions apply to our organisation.

Retained Records under the Public Records Act, 1958

Section 23 & 24 of the Freedom of Information Act, 2000 (FOI) are the security exemptions. As such any records which are identified as containing information engaging either of these exemptions are not transferred closed to The National Archives. These records are more commonly retained in the transferring department under the provisions of section 3(4) of the Public Record Act, 1958.

We do not hold information on how many retained records (prior to transfer in 2012), engage either of these Freedom of Information exemptions because retention is carried out under the Public Records Act, 1958. Retention has a separate set of criteria to justify why the records should remain with the transferring department (see Access Manual, link below). Thus there is no requirement on departments to specify which Freedom of Information exemptions may also apply.

Useful links

Our website provides further explanation on the legislation that governs transfer and access to historical records and guidance on The National Archives' processes:

Access to public records (PDF, 0.28Mb)

Section 23 & Section 24 FOIA - how it applies to The National Archives

For clarification, section 23 (5) or section 24 (2) of the Freedom of Information Act if applied allows a public body (and this includes The National Archives) to neither, confirm or deny if information is held. Many of the Freedom of Information exemptions include this principle, e.g. - section 27 (4) - international relations, 31(3) - law enforcement and section 40(5) personal information.

The only difference for The National Archives with regards to the use of section 23 is that this becomes a qualified exemption for historical information and requires a public interest test - see section 64 (2) of the Freedom of Information Act. 

www.legislation.gov.uk/ukpga/2000/36/section/64

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