When records are not found
Neither confirm nor deny: how the response works
Short answer
- UK duty displaced
- Duty to confirm or deny, section 1(1)(a) 1
- UK environmental information
- Regulation 12(6) EIR 2
- Canada
- Head may decline to indicate whether a record exists, s 10(2) 3
- US exclusions
- 5 U.S.C. § 552(c)(1) to (c)(3) 4
Why the response exists
Sometimes the answer to whether a record exists is itself sensitive. The ICO says narrow, specific requests are more likely to need an NCND reply and very broad ones usually are not 2.
The ICO says NCND applies where confirming or denying would itself disclose exempt information or cause the harm an exemption protects against 2. It can apply even if the information is not held 2.
Which UK exemptions allow it
For environmental information, the matching provision is regulation 12(6) of the Environmental Information Regulations 2.
| Type | Provisions listed by the ICO |
|---|---|
| Prejudice-based | ss 26(3), 27(4)(a), 28(3), 29(2), 31(3), 33(3), 36(3), 38(2), 43(3) 2 |
| Same purpose as withholding | ss 24(2), 34(2), 40(5B), 41(2), 42(2), 44(2) 2 |
| Relates to exempt information | ss 22A(2), 30(3), 32(3), 35(3), 37(2), 39(2), 40(5A) 2 |
| Confirmation would disclose exempt information | ss 22(2), 23(5), 27(4)(b) 2 |
Rules the ICO applies
- Consistency. NCND should be used for the same type of information every time, whether or not anything is held 2.
- No blanket use. The ICO says NCND must not be a blanket response 2.
- Public interest. For qualified exemptions, the test weighs only the public interest in confirming or denying, not the contents of any information 2.
- Public domain. Unofficial information already in public does not defeat NCND, but official confirmation is different 2.
- Refusal notice. It must say the body refuses to confirm or deny, name the exemption and explain why it applies, worded so it does not reveal whether anything is held 2.
Canada and the United States
Canada's Access to Information Act requires a refusal notice to state that a record does not exist where that is the case 3. Section 10(2) says the head of an institution may, but is not required to, indicate whether a record exists 3.
The US FOIA takes a different route. Section 552(c) lets agencies treat three narrow categories of records as outside the Act's requirements. These are certain criminal investigation records for as long as the circumstance continues, informant records where the informant's status has not been officially confirmed, and FBI foreign intelligence or counterintelligence records for as long as their existence stays classified 4.
How NCND differs from not held
A not held reply answers the question with a no 1. An NCND reply gives no answer either way 2. The UK Cabinet Office bulletin for 2025 reports not held replies as their own category, with 19,194 requests at monitored bodies 5.
Common questions
Does an NCND reply mean the record exists?
No. The ICO says NCND can apply even where the information is not held, and should be used consistently 2.
Can I complain about an NCND reply in the UK?
Yes, through internal review and then the regulator. The ICO assesses whether the exemption cited supports NCND 2.
Must the body explain an NCND reply?
It must name the exemption and explain why it applies, but under section 17(4) it need not give reasons that would reveal whether information is held 2.
Does US law have a similar rule?
Section 552(c) of the US FOIA lets agencies treat three categories of sensitive records as outside the Act 4.
Rules and charges change. Check the official source linked on this page before you pay or travel. Spotted an error? Email hello@publicrecordgaps.com.
Sources
- legislation.gov.uk: Freedom of Information Act 2000, section 1
- ICO: When to Refuse to Confirm or Deny Holding Information
- Justice Laws Website, Government of Canada: Access to Information Act (section 10)
- Legal Information Institute: 5 U.S. Code § 552 - Public information
- GOV.UK: Freedom of Information statistics: annual 2025 bulletin (29 April 2026)
Related
- Information not held: what the reply means
What a public body means when it says it does not hold information, how searches are judged, and how rules differ in the UK, US, Canada, Ireland and EU.
- Why public records go missing
The lawful and unlawful reasons a public record cannot be produced: never created, lawfully destroyed, held elsewhere, overwritten or lost.
- How to request a missing public record
The official steps to ask for a record that is not published: describe it precisely, use the right law, note the deadline and use review and appeal routes.