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Neither confirm nor deny

In some circumstances it may be appropriate to neither confirm nor deny whether information is held. This is an exemption from the right under section 1(1)(a) of requestors to be informed whether the information is held.

A 'neither confirm nor deny' response may be required in circumstances where to confirm or deny the existence of information would itself communicate sensitive and potentially damaging information, to the detriment of the public good. Its use is particularly relevant in the areas of law enforcement, intelligence and national security. The work of the security and intelligence agencies being necessarily secret, it is a well-established matter of public policy that they do not normally disclose their operational capabilities or limits, what they are investigating, or what information they hold (or do not hold).

However, a 'neither confirm nor deny' response can be used - in appropriate circumstances - for all but one of the exemptions (section 21 - information accessible to applicant by other means). Examples of other areas where a 'neither confirm nor deny' response may be appropriate are:

• Inspections: where an inspection is planned and advance notice of the planned inspection would give the body to be inspected an unfair advantage, allowing them time to prepare for the inspection (section 30).
• Honours: when to confirm or deny whether a person has been considered for an honour would pre-empt any announcement and might reveal the names of those considered but not selected for an award (section 37(1)(b)).  
• Policy development: an example is in the period prior to the Budget. Were the Treasury to confirm that they had a paper discussing the merits of introducing a new form of tax, it could lead people to infer that the government was about to introduce it (section 35).
• Economic and commercial activities: if a request was received asking whether an authority held any information on a take-over bid by Company X of Company Y, to confirm or deny the existence of such information could affect share prices and potentially prejudice other negotiations in which Company Y may be engaged (section 43).

A decision to neither confirm nor deny whether information is held needs to be taken in a similar manner to a decision to refuse to disclose information. That is to say, you must be certain that one of the Act's exemptions is engaged and (where relevant) that the public interest favours 'neither confirming nor denying' that the information is held. The decision to neither confirm nor deny is separate from a decision not to disclose the information and needs to be taken entirely in its own terms. If you determine that it is appropriate to 'neither confirm nor deny', you should respond saying so and cite the relevant exemption(s) (unless doing so would itself reveal exempt information).

Where an authority reaches the conclusion that it has no obligation under the Freedom of Information Act to state whether it holds the information requested, the usual manner of doing so is to say that it will 'neither confirm nor deny' whether it holds the information.