Introduction Part 1: 01 | 02 | 03 | 04 Part 2: 01 | 02 | 03 | 04 Annexes: annex A
3.1 Section 37 is not an absolute exemption. In considering whether or not to use this exemption Departments should consider whether or not the public interest in withholding the information outweighs the public interest in disclosing it. Only if the public interest in withholding is the greater should disclosure be refused. However, for the reasons set out below, it may be in only the most exceptional circumstances that the balance of the public interest comes down in favour of disclosing information falling within the terms of section 37(1).
3.2 Where subsection (2) applies, there is no obligation to confirm or deny whether or not the information requested is held.
3.3 Having reached a judgement as to whether or not particular information falls under this exemption Departments will need a clear view of the public interest considerations that must be weighed in considering whether or not the information requested should be released. The balance of the public interest must be based on a proper examination of all the circumstances of the case. A number of relevant considerations are set out below. They deal first with communications with the Sovereign, then with those with the heir to the throne, and then with those with other members of the Royal Family.
It is a fundamental constitutional principle that communications between the Queen and her Ministers and other public bodies are essentially confidential in nature and there is therefore a fundamental public interest in withholding information relating to such communications. That is so because the Sovereign has the right and the duty to counsel, encourage and warn her government. She is thus entitled to have opinions on government policy and to express them to her ministers. She is, however, constitutionally bound to accept and act on the advice of her ministers. Any communications which have preceded the giving of that advice remain confidential, because of the need to maintain the political neutrality of the Queen in public affairs (its reality and appearance); this itself is fundamental to the UK system of constitutional monarchy;
3.4 There is also a fundamental need to avoid prejudicing the Queen's diplomatic activities, for example in:
And the need to maintain and protect the Queen's personal safety in the planning and carrying out of her public duties is also of paramount importance.
3.5 Unlike with some other exemptions, it is unlikely that the sensitivity of much of the information covered by this exemption will diminish with time. The Sovereign remains in office for life. It will remain a matter of constitutional sensitivity that the Queen expressed particular views on a policy or a personality long after the policy has been implemented (and may even have been superseded), or the personality has ceased to hold the relevant office. Consequently, as a general rule, communications between the Sovereign and Government Ministers, including those between their respective Private Secretaries, which refer to such matters, and where such views are not already in the public domain, are likely to remain sensitive during the lifetime of the Sovereign and possibly even after the death of the Sovereign.
3.6 The Queen is in a unique position in that it is particularly difficult to disentangle her public and private personas. Unlike any other figure in public life, except the heir to the throne, she was born to her position in public life and has no choice but to accept the resulting media interest. It is important to remember that 'what the public is interested in' is not the same as 'the public interest' as used in the Act. As noted above personal information relating to the Queen, particularly in relation to her private affairs, may fall to be considered under section 40, in accordance with the Data Protection Act.
3.7 Communications between the heir to the throne and Government Ministers, including those between their respective private secretaries, where such views are not already in the public domain are, like those of the Sovereign, likely to remain sensitive because they could, at a later date, be taken to show a lack of political neutrality. It is therefore likely that the public interest test in respect of such communications will continue to be determined in favour of withholding the information. This is all the more the case because there are two 'end dates' which may determine the sensitivity of the information; both the date at which it was created and the proximity of any disclosure to the eventual accession to the throne.
3.8 Other members of the Royal Family are not in the same constitutional position as the Sovereign and the heir to the throne, but the factors set out above in relation to the need to maintain the neutrality of the Sovereign, the need not to undermine diplomatic and goodwill work and the need to preserve personal safety are still relevant to a decision on whether disclosure would be in the public interest. The other members of the Royal Family may also perform public roles whose performance is dependent upon the maintenance of the confidentiality of their communications with public authorities. (Provisions on the protection of personal information, under section 40 will apply to all members of the Royal Family as they do to all citizens.)
Openness in government can increase public trust and engagement. The FOI Act requires the public interest to be balanced before a final decision can be taken about whether or not to disclose. But for the reasons indicated above, it is likely to be in exceptional circumstances only that the public interest will come down in favour of disclosure of this information to the extent that it is to any degree confidential or private.
3.9 When in receipt of a request for disclosure of information which has been contained in a communication with the Royal Family or Royal Household, Departments should always consult with the relevant private office before making a decision on disclosure. The Royal Household will be nominating a senior individual as the point of contact.
3.10 Under the provisions of section 62, a record becomes a historical record 30 years after it was created. Under the provisions of section 63(1), the exemption in section 37(1)(a) ceases to apply to historical records.
3.11 However, as noted above, the sensitivity of information about the Sovereign's personal views on policy issues or personalities may last for the lifetime of the Sovereign and even beyond. There are some exemptions which do not expire when the records in which the information is contained is more than 30 years old. In these circumstances the following exemptions may be relevant:
It should be particularly noted in this context that both section 35 (formulation of government policy) and section 36 (effective conduct of public affairs) also expire 30 years after the date of the record in which it is held.