FOIA Section 37 Exemption: Difference between revisions

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(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).
(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 2010 ===


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" at the end of the 2009-10 parliamentary session ahead of the 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 86 of the CRGA 2010 says "Schedule 15 (which makes amendments of the Freedom of Information Act 2000 (c. 36)) has effect.".  This Section requires a commencement order via Statutory Instrument before it becomes active in law.  Schedule 15 says:
'''Schedule 15 Amendments of Freedom of Information Act 2000'''
: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 Section 37:
'''37 Communications with Her Majesty, etc. and honours'''
(1) Information is exempt information if it relates to— <br>
:<nowiki>(a) communications with the Sovereign</nowiki> <br>
:<nowiki>(aa) communications with the heir to, or the person who is for the time being second in line of succession to, the Throne,</nowiki> <br>
:<nowiki>(ab) communications with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne,</nowiki> <br>
:<nowiki>(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</nowiki> <br>
:<nowiki>(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 </nowiki> <br>
:<nowiki>(b) the conferring by the Crown of any honour or dignity.</nowiki> <br>
(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).


== Official Guidance ==
== Official Guidance ==

Revision as of 20:40, 30 April 2010

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

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 2010

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" at the end of the 2009-10 parliamentary session ahead of the 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 86 of the CRGA 2010 says "Schedule 15 (which makes amendments of the Freedom of Information Act 2000 (c. 36)) has effect.". This Section requires a commencement order via Statutory Instrument before it becomes active in law. Schedule 15 says:

Schedule 15 Amendments of Freedom of Information Act 2000

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 Section 37:

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).

Official Guidance

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

Decision Notices

  • 12 March 2008 - FS50119029 - House of Lords Appointments Commission - upheld, public interest test in favour of disclosure
  • 24 April 2008 - FS50088853 - HM Treasury - not upheld
Freedom of Information Act 2000
Exemptions
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