Information Commissioner's Office

Ministry of Defence

30 March 2015, Central government

The complainant submitted three requests to the Ministry of Defence (MOD) all of which sought to establish whether legal advice had been sought on particular aspects of the government nuclear weapons policy, and if advice was held, the title and author of the advice. The MOD refused to confirm or deny whether it held any information - and thus not comply with the duty contained at section 1(1)(a) - on the basis of sections 35(3) and 42(2) of FOIA. The Commissioner has decided that although both exemptions are engaged, the public interest in maintaining each exemption does not outweigh the public interest in the MOD complying with the duty contained at section 1(1)(a) of FOIA in relation to each of the complainant’s three requests. The Commissioner requires the public authority to confirm or deny whether information falling within the scope of each of the complainant’s three requests is held, and disclose or refuse to disclose any information identified in a manner which is compliant with FOIA. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. This decision notice is currently under appeal to the Tribunal.

FOI 1: Upheld FOI 35: Upheld FOI 42: Upheld