FOIA Section 37 Exemption: Difference between revisions

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* In respect of both parts of this exemption, public authorities should be alive to the need to consult relevant departments or private offices;  
* In respect of both parts of this exemption, public authorities should be alive to the need to consult relevant departments or private offices;  
* The exemption applies in relation to deceased members of the Royal Family;
* The exemption applies in relation to deceased members of the Royal Family;
* Section 37 is subject to a [[Public_Interest_Test|public interest balance]] - see below as this will be amended to be an absolute exemption in 2010.
* Section 37 is subject to a [[Public_Interest_Test|public interest balance]] - see below as this will be amended to be an absolute exemption in 2011.


== What the law says ==
== What the law says ==
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=== Amendment to this exemption in 2011 ===
=== Amendment to this exemption in 2011 ===


There is a major amendment to the [[Freedom of Information Act 2000]] relating to this Exemption, included in the [[Constitutional Reform and Governance Act 2010]] which was controversially made law as part of the "[http://en.wikipedia.org/wiki/Wash-up_period wash-up period]" at the end of the parliamentary session ahead of the May 2010 general election.  The main effect is to make the exemption an absolute one, i.e. not requiring a [[Public Interest Test|public interest test]].  It also formalises which members of the Royal Family are included.  This Section requires a commencement order via Statutory Instrument before it becomes active in law.
There is a major amendment to the [[Freedom of Information Act 2000]] relating to this Exemption, included in the [[Constitutional Reform and Governance Act 2010]] which was controversially made law as part of the "[http://en.wikipedia.org/wiki/Wash-up_period wash-up period]" at the end of the parliamentary session ahead of the May 2010 general election.  The main effect is to make the exemption an absolute one, i.e. not requiring a [[Public Interest Test|public interest test]].  It also formalises which members of the Royal Family are included.


[http://www.opsi.gov.uk/acts/acts2010/plain/ukpga_20100025_en#pt6-l1g46 Section 46 of the CRGA 2010] says "Schedule 7 (which makes amendments of the Freedom of Information Act 2000 (c. 36)) has effect".
[http://www.opsi.gov.uk/acts/acts2010/plain/ukpga_20100025_en#pt6-l1g46 Section 46 of the CRGA 2010] says "Schedule 7 (which makes amendments of the Freedom of Information Act 2000 (c. 36)) has effect".

Revision as of 21:08, 18 January 2011

Section 37: Communications With Her Majesty, With Other Members Of The Royal Household, And The Conferring By The Crown Of Any Honour Or Dignity

Section 37 applies to two categories of information:

  • Information relating to communications with Her Majesty, other members of the Royal Family or the Royal Household; and
  • Information relating to the conferring by the Crown of any honour or dignity.

Key points:

  • It is a fundamental constitutional principle that communications between the Queen and her Ministers are essentially confidential in nature: in most situations, the public interest in disclosure is likely only exceptionally to outweigh the public interest in maintaining this aspect of the exemption;
  • In respect of both parts of this exemption, public authorities should be alive to the need to consult relevant departments or private offices;
  • The exemption applies in relation to deceased members of the Royal Family;
  • Section 37 is subject to a public interest balance - see below as this will be amended to be an absolute exemption in 2011.

What the law says

37 Communications with Her Majesty, etc. and honours

(1) Information is exempt information if it relates to—

(a) communications with Her Majesty, with other members of the Royal Family or with the Royal Household, or
(b) the conferring by the Crown of any honour or dignity.

(2) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

Amendment to this exemption in 2011

There is a major amendment to the Freedom of Information Act 2000 relating to this Exemption, included in the Constitutional Reform and Governance Act 2010 which was controversially made law as part of the "wash-up period" at the end of the parliamentary session ahead of the May 2010 general election. The main effect is to make the exemption an absolute one, i.e. not requiring a public interest test. It also formalises which members of the Royal Family are included.

Section 46 of the CRGA 2010 says "Schedule 7 (which makes amendments of the Freedom of Information Act 2000 (c. 36)) has effect".

Schedule 7 Amendments of Freedom of Information Act 2000[1]

1 The Freedom of Information Act 2000 (c. 36) is amended as follows.
2 In section 2(3) (exemptions not subject to public interest test) after paragraph (e) insert—
“(ea) in section 37, paragraphs (a) to (ab) of subsection (1), and subsection (2) so far as relating to those paragraphs,”.
3 In section 37(1) (communications with Her Majesty, etc.), for paragraph (a) substitute—
“(a) communications with the Sovereign,
(aa) communications with the heir to, or the person who is for the time being second in line of succession to, the Throne,
(ab) communications with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne,
(ac) communications with other members of the Royal Family (other than communications which fall within any of paragraphs (a) to ::(ab) because they are made or received on behalf of a person falling within any of those paragraphs), and
(ad) communications with the Royal Household (other than communications which fall within any of paragraphs (a) to (ac) because they are made or received on behalf of a person falling within any of those paragraphs), or”.


This will result in the following text for the Freedom of Information Act 2000 Section 37 exemption:

37 Communications with Her Majesty, etc. and honours

(1) Information is exempt information if it relates to—

(a) communications with the Sovereign
(aa) communications with the heir to, or the person who is for the time being second in line of succession to, the Throne,
(ab) communications with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne,
(ac) communications with other members of the Royal Family (other than communications which fall within any of paragraphs (a) to (ab) because they are made or received on behalf of a person falling within any of those paragraphs), and
(ad) communications with the Royal Household (other than communications which fall within any of paragraphs (a) to (ac) because they are made or received on behalf of a person falling within any of those paragraphs), or
(b) the conferring by the Crown of any honour or dignity.

(2) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

These changes will come into force on 19th January 2011 by virtue of SI 2011/46.

ICO Lines To Take

Relevant Lines to Take
  • LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions - 20/06/2008


Official Guidance

DCA Guidance: http://www.dca.gov.uk/foi/guidance/exguide/sec37/index.htm

Decision Notices

Complaints upheld / partly upheld (P) Complaints not upheld
  • FS50140361 - Cabinet Office - 31/03/2010
  • FS50197502 - Cabinet Office - 16/03/2010
  • FS50197952 - Cabinet Office - 28/01/2010
  • FS50223685 - Home Office - 19/01/2010
  • FS50154684 - Department for Culture, Media and Sport - 15/12/2009
  • FS50194194(P) - House of Lords Appointments Commission - 24/11/2009
  • FS50184282(P) - Cabinet Office - 30/07/2009
  • FS50119029 - House of Lords Appointments Commission - 12/03/2008
  • FS50220275 - Cabinet Office - 29/03/2010
  • FS50208178 - Foreign and Commonwealth Office - 29/03/2010
  • FS50204654 - Foreign and Commonwealth Office - 29/03/2010
  • FS50207213 - Cabinet Office - 29/03/2010
  • FS50150313 - Medicines and Healthcare Products Regulatory Agency - 11/03/2010
  • FS50127519 - Department for Children, Schools and Families - 02/03/2010
  • FS50139606 - Ministry of Defence - 02/03/2010
  • FS50150310 - Department of Health - 27/01/2010
  • FS50080236 - Department of Health - 21/12/2009
  • FS50080240 - Department for Environment Food and Rural Affairs - 15/12/2009
  • FS50114757 - Cabinet Office - 15/12/2009
  • FS50080238 - Department for Children, Schools and Families - 15/12/2009
  • FS50101577 - Northern Ireland Office - 15/12/2009
  • FS50080243 - Department for Culture, Media and Sport - 15/12/2009
  • FS50080233 - Department for Business, Innovation and Skills - 15/12/2009
  • FS50115031 - Cabinet Office - 18/08/2009
  • FS50142320 - Cabinet Office - 29/01/2009
  • FS50088853 - HM Treasury - 24/04/2008

Includes DNs up to: 26 April 2010



Freedom of Information Act 2000
Exemptions
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