FOI and national security
Freedom of Information (FOI) and National Security
Background
Freedom of Information (FOI) laws give the public the right to access information held by public authorities to promote transparency, accountability, and democracy.
However, national security is a frequent ground on which governments refuse to disclose information. The core tension is between:
The public interest in disclosure (transparency)
The public interest in protecting national security (confidentiality)
Legal Framework
Most FOI laws include exemptions or exceptions allowing withholding of information if its disclosure would be prejudicial to national security, defense, or public safety.
Courts play a key role in:
Determining whether refusal to disclose is justified
Balancing public interest in disclosure vs risk to national security
Key Issues
What qualifies as national security?
How strong must the government’s claim of harm be?
Is there an independent judicial review to test claims of harm?
Can information be disclosed in a redacted or limited form?
Detailed Case Law
1. R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33
Facts: Prisoners challenged a policy preventing journalists from interviewing prisoners on sensitive political issues.
Issue: Whether government could restrict information on grounds of national security.
Held: The House of Lords emphasized that restrictions on freedom of expression should be clearly justified, especially where fundamental rights are involved. National security is a legitimate ground but must be narrowly interpreted.
Importance: Affirmed the high threshold for restricting information and stressed proportionality in national security claims.
2. R (Guardian News & Media Ltd) v The Information Commissioner and The Foreign Secretary (The “DSD” case) [2015] UKSC 22
Facts: The Guardian sought disclosure of documents related to surveillance programs under FOI. The government refused citing national security.
Issue: Should national security be interpreted broadly to exempt government documents from FOI?
Held: The Supreme Court held that the government must provide substantial and specific evidence that disclosure would cause real harm to national security. Blanket refusal was not enough.
Importance: Clarified the burden on the government to justify refusal and encouraged careful judicial scrutiny of national security claims under FOI.
3. R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] UKSC 8
Facts: Mohamed sought disclosure of government documents about alleged UK complicity in torture abroad.
Issue: Balancing FOI against national security and diplomatic relations.
Held: The court recognized the importance of transparency but accepted limited exceptions where disclosure would damage national security or diplomatic relations.
Importance: Demonstrated courts balancing FOI rights with national security/diplomatic sensitivities.
4. Department of Health v Information Commissioner and British Medical Association [2009] UKHL 3
Facts: The British Medical Association sought data about hospital infection rates; the government refused citing national security and commercial confidentiality.
Held: The House of Lords held that national security exceptions must be narrowly construed and only apply if disclosure would cause real and substantial harm.
Importance: Reinforced that “national security” should not be a catch-all exemption.
5. The Spycatcher Case (Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248)
Facts: A former MI5 agent published memoirs disclosing secret operations. The government tried to restrain publication citing national security.
Held: The court refused to grant an injunction because the information was already widely disseminated overseas and suppression was futile.
Importance: Highlights limits on national security claims where information is already public and courts’ unwillingness to impose broad secrecy.
6. R (Evans) v Attorney General [2015] UKSC 21
Facts: The Guardian requested letters between Prince Charles and government ministers under FOI. The government refused citing national security and public interest.
Held: The Supreme Court ruled in favor of disclosure, emphasizing transparency and accountability trumping vague national security claims.
Importance: Demonstrates judicial skepticism of overbroad national security exemptions under FOI.
Summary of Principles from Case Law
| Principle | Explanation | Case Example(s) |
|---|---|---|
| Narrow interpretation of exemption | National security exemption must be narrowly construed | Department of Health v Information Commissioner |
| Burden of proof on government | Must show specific, real harm from disclosure | Guardian News & Media v Foreign Secretary |
| Proportionality test | Restrictions on information must be proportionate | Simms, Mohamed |
| Public interest in transparency | Strong public interest in disclosure, especially involving fundamental rights | Evans v Attorney General, Spycatcher |
| Courts as independent reviewers | Courts must carefully scrutinize national security claims | All cases |
Conclusion
FOI and national security claims often come into conflict. Courts have developed a nuanced approach requiring governments to justify refusals with concrete evidence of harm and balancing this against the public interest in transparency. National security is a legitimate but limited ground for withholding information under FOI laws.
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