FOIA Section 37 Exemption

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 when used by a Nprthern Ireland body or in respect of a request received before 19th January 2011.

What the law says

There are essentially two versions of this exemption. The first one applies to requests made before 19th January 2011 and to later requests made to any of:

• The Northern Ireland Assembly
• A Northern Ireland department
• A Northern Ireland public authority

The second applies to other requests.

Northern Ireland and requests pre-dating 19th January 2011

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).

Other cases

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).

Time limits

Northern Ireland and requests pre-dating 19th November 2011

By virtue of section 63(1), the exemption under section 37(1)(a) expires at the end of thirty years starting at the start of the year after the record was created.

By virtue of section 63(3), the exemption under section 37(1)(b) expires at the end of sixty years beginning at the start of the next year after the record was created.

Other cases

By virtue of sections 63(2E) and 63(2F), the exemptions under sections 37(1)(a) to 37(1)(ac) expire on the later of:

• Twenty years after the record was created, and
• Five years after the death of the relevant member of the Royal Family.

The exemption under section 37(1)(ad) expires on the later of:

• Twenty years after the record was created, and
• Five years after the death of the Sovereign who was reigning when the record was created.

By virtue of section 63(3), the exemption under section 37(1)(b) expires at the end of sixty years beginning at the start of the next year after the record was created.

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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