Latest updates
18 April 2023 – We have changed the title of this guidance following King Charles III’s accession to the throne.
We have included a new section “What does FOIA say?” where we have explained why the title has been changed.
We have also clarified our position about the timing at which we expect public authorities to assess the public interest when applying the section 37(1)(b) provision of this exemption. The updated position follows the Upper Tribunal’s decision in Montague v The Information Commissioner and Department for International Trade: [2022] UKUT 104 (AAC).
You can find this update in the section “How do we consider the balance of the public interest in section 37(1)(b)?“
About this detailed guidance
This guidance discusses in detail section 37, the Freedom of Information Act (FOIA) exemption for communications with the Sovereign, the heir to the Throne, the Royal Family and Household, and the awarding of honours. It is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you apply this exemption in practice.
In detail
What does FOIA say?
Section 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).
Although the relevant wording in the legislation has not changed, we have changed the title of this guidance to reflect King Charles III’s accession to the throne following the Queen’s passing on 8 September 2022.
This is on the basis of section 10 of the Interpretation Act 1978.
What exemption is contained in section 37 of FOIA?
Sections 37(1)(a), 37(1)(aa) and 37(1)(ab) provide an exemption from disclosing information if it covers communications with or on behalf of:
- the Sovereign or the heir to the Throne;
- the person second in line of succession to the Throne; or
- a person who has subsequently come to the throne or become heir or second in line to the Throne.
Information relating to communications with the Sovereign and heir, either currently or after they assume those roles, only has to fall within the scope of these exemptions to be withheld.
These exemptions are absolute, and therefore are not subject to the public interest test. You do not need to consider what may or may not be in the public interest if you disclosed the information.
Sections 37(1)(ac-ad) focus on communications with other members of the Royal Family or the Royal Household, except for those made or received by the Sovereign or heir to the Throne.
Section 37(1)(b) focuses on the awarding of honours or dignities by the Crown.
The exemptions in sections 37(1)(ac-ad) and section 37(1)(b) are qualified exemptions and so are subject to the public interest test. You need to consider whether it is in the public interest to disclose the information you hold.
Section 37(2) gives you the option to neither confirm or deny whether you hold information that would be exempt under section 37(1). This is covered later in this guidance.
In order to decide whether information is exempt under section 37 you need to consider whether the requested information involves information relating to communications with:
- the Sovereign;
- the heir to or second in line to the Throne;
- other members of the Royal Family or Household; or
- relating to the awarding of honours and dignities by the Crown.
The provisions of FOIA are not directly applicable to the Royal Family or Royal Household. If you have communicated with the Sovereign or members of the Royal Family or Royal Household, sections 37(1)(a) – (ad) are likely to apply. You may also hold such communications in an archive.
The National Archives, central government departments and other public authorities are likely to hold information falling within the scope of these exemptions, such as:
- communications between the Sovereign and government ministers;
- correspondence with members of the Royal Family in respect of royal visits or other public engagements;
- records of audiences (private meetings) with members of the Royal Family;
- material that has been shown, or will be shown, to the Sovereign for approval;
- copies of speeches given by members of the Royal Family; or
- copies of messages exchanged between members of the Royal Family.
The exemptions also cover communications made or received by a person (or organisation) who was acting on behalf of the Sovereign, heir, second in line to the Throne or other members of the Royal Family.
How should we interpret the terms used in the exemption?
The term “relates to” is not defined in FOIA but is generally interpreted broadly. This means that the scope of the exemption covers more than just the communications themselves. It also applies to information that refers to, or is drawn from those communications. However, it is an imprecise term, as shown in the First-tier Tribunal decision below.
Example
The term “relates to” that is used in this exemption and throughout the FOIA was considered in Jason Loch v the Information Commissioner and Ministry of Justice, EA/2017/0223 (6 August 2018).
The Tribunal reflected on the earlier All Party Parliamentary Group on Extraordinary Rendition (APPGER) v the Information Commissioner and the Foreign and Commonwealth Office [2015] UKUT 0377 where the Upper Tribunal had said regarding the term ‘relates to’ that “…a steer or guidance in general terms is impermissible and unhelpful…”. The Tribunal found it hard to understand why such guidance from a higher court to a lower court would be “unhelpful” and found the lack of guidance was yet more unhelpful.
A broad construction of ‘relates to’ means that there needs to be some connection between the information and the relevant body. Though the reasoning behind why the Upper Tribunal had said that the phrase ‘relates to’ should be given a wide or broad construction was hard to follow. The Tribunal speculated that the terms “wide” and “narrow” were not particularly helpful in this context and a better approach might be to give ‘relates to’ its ordinary meaning rather than a broad construction.
The appellant suggested that the phrase should not be applied broadly in relation to section 37(1)(a) because it was an absolute exemption which did not have the “safety net” of the public interest balancing test. However, the Tribunal concluded that ‘relates to’ needed to have a similar construction throughout FOIA and that it was obliged to follow the decision of the higher court.
However, too broad a construction would not be appropriate:
“It would mean that the term ‘relates to’ would catch more than communications directly to and from the Sovereign (or, more likely, her private secretary) but should not catch communications where, although that might be some argument that there was a relationship or potential relationship with the Sovereign, that relationship was tenuous or tangential rather than real.”
Additionally, the Tribunal considered the Commissioner’s view in FS50672973 to stretch the interpretation too far. The Commissioner had decided that all the requested information engaged section 37(1)(a) but the Tribunal said that this approach effectively rendered section 37(1)(b), redundant.
The phrase “communications with” includes information intended for communication such as:
- records of proposals to send correspondence or organise meetings; or
- draft versions of letters and speeches.
It does not matter whether those communications were ever sent or received, or the meetings ever took place.
Example
Brown vs ICO and the Attorney General (EA/2011/0002 August 2011) concerned a request the complainant had made to the Attorney General for information about the handling of Royal Wills. The Attorney General refused his request under section 37(1)(a).
In his appeal to the Tribunal, the complainant argued that section 37 was not engaged because a will is not a form of communication. However, the Tribunal ruled that the information was covered by the exemption because it derived from communications with the Queen.
In dismissing the appeal, the Tribunal observed that:
“…Section 37 is addressed to and includes information relating to specified communications. On any basis, section 37(1) is simply not confined to the communication itself. As the Commissioner made clear in his written submissions, section 37(1) is much broader.” (para 42)
“In any event, another decision of this Tribunal, namely DfES v
Information Commissioner and Evening Standard (EA/2006/0006) firmly took the view, with which this Tribunal respectfully agrees, that a broad interpretation should be afforded to the phrase or concept “relates to” as used in section 37…’”(para 44)
How do we apply sections 37(1)(a), 37(1)(aa) and 37(1)(ab)?
Sections 37(1)(a), (aa) and (ab) state:
37. – (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.
The Constitutional Reform and Governance Act 2010 amended section 37 of FOIA to ensure that the constitutional position and impartiality of the Monarchy was not undermined. This legislation made the following categories of information subject to an absolute exemption, whereas they had previously been subject to the public interest test:
- information relating to communications with the Sovereign [section 37(1)(a)];
- information relating to communications with the heir to, or the person who is for the time being second in line of succession to, the Throne [section 37(1)(aa)]
- information relating to communications with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne [section 37(1)(ab)].
You do not have to apply the public interest test to information falling within these categories. You can apply the exemption without any further qualification.
The Constitutional Reform and Governance Act 2010 also introduced a new category of absolutely exempt information through the addition of section 37(1)(ab): communications with a person who later becomes Sovereign, heir or second in line to the Throne before they assume that role are absolutely exempt.
Example
The person who was third in line to the Throne ascends to become second in line.
Several months later a government department receives an FOI request for copies of any correspondence it has exchanged with that person.
The information covered by this request includes a letter the person sent to the department when he was third in line to the Throne.
This information is caught by the scope of section 37(1)(ab). This is because it is a communication with a person who subsequently became second in line to the Throne.
How do we apply section 37(1)(ac)?
Section 37(1)(ac) states:
37. – (1) Information is exempt if it relates to…
(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)…
Section 37(1)(ac) provides an exemption for information relating to communications with the Royal Family. It is a qualified exemption and therefore subject to a public interest test.
It can only be applied to information that falls outside the scope of the three absolute exemptions (sections 37(1)(a) through to (ab)).
If the information falls under both section 37(1)(ac) and one of the absolute exemptions, then you must apply the absolute exemption. In other words, if you hold information sent by a member of the Royal Family to the heir to the Throne, you cannot exempt it under section 37(1)(ac) or consider the public interest because it is absolutely exempt under section 37(1)(aa).
There is no strict legal definition of the term ‘Royal Family’. Generally, you should take it to mean all individuals who are entitled to hold the title of ‘Majesty’ or ‘Royal Highness’ and their spouses.
The matter is not straightforward, and there have been queries over the status of particular individuals who are or have been members of the Royal Family. If you are in any doubt about the status of the individual concerned, you should consult the website of the British Monarchy (www.royal.gov.uk) as this contains an official list of the current members of the Royal Family.
Section 37(1)(ac) does not cover communications with people who have subsequently become members of the Royal Family. If a person has joined the Royal Family through marriage, any communications that predate their marriage are not covered by the exemption. If the information relates to an individual who has lost their royal status, the exemption only covers the period when that person was a member of the Royal Family.
How do we apply section 37(1)(ad)?
Section 37(1)(ad) states:
37. – (1) Information is exempt information if it relates to…
(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)…
The Royal Household is made up of all the households of members of the Royal Family. Each household is made up of the permanent members of the relevant private office and those who from time to time assist members of the Royal Family with their private and public duties. Contractors supplying goods and services to the Royal Household, including by royal warrant, aren’t included in this definition.
If you are unsure whether the communication relates to the Royal Household, you should refer to the Royal Family website.
Section 37(1)(ad) is a qualified exemption, so you need to carry out a public interest test.
You may only apply section 37(1)(ad) where the information falls outside the scope of sections 37(1)(a) through to 37(1)(ac).
You must apply the absolute exemption, if the information is caught both by section 37(1)(ad) and one or more of sections 37(1)(a) through to (ac).
Example
If you receive a request for copies of correspondence between the Royal Household and Prince Edward you would not be able to rely on section 37(1)(ad). Prince Edward is a member of the Royal Family so you would rely on section 37(1)(ac) to withhold the information.
When do sections 37(1)(a) – (ad) become a historical record?
Sections 63(2E) and (2F) state:
63.—(2E) Information cannot be exempt information by virtue of any of paragraphs (a) to (ad) of section 37(1) after whichever is the later of—
(a) the end of the period of five years beginning with the date of the relevant death, and
(b) the end of the period of twenty years beginning with the date on which the record containing the information was created
(2F) In subsection (2E)(a) “the relevant death” means-
(a) for the purposes of any of the paragraphs (a) to (ac) of section 37(1), the death of the person referred to in the paragraph concerned, or
(b) for the purposes of section 37(1)(ad), the death of the Sovereign reigning when the record containing the information was created.
Under Section 63(2E), you cannot apply sections 37(1)(a) through to (ad) if the later of the following time periods has passed:
- Five years from the date of the “relevant death”; or
- 20 years from the creation of the record containing the information.
For the purposes of sections 37(1)(a) to (ac), the “relevant death” means the death of the individual the communication relates to.
For the purposes of section 37(1)(ad), the “relevant death” means that of the Sovereign who was reigning when the record containing the information was created.
The following are examples of how you might apply section 63(2E) in practice:
Example
In 2021, you receive a request for the minutes of a meeting you held with a member of the Royal Family in January 2005.
This information falls within the scope of section 37(1)(ac) [communications with other members of the Royal Family].
The family member in question died in April 2015.
This means that:
- a period of five years from the date of the “relevant death” elapsed in April 2020; and
- a period of 20 years from the date the record was created will elapse in January 2025.
In this case, the later date (January 2025) has not yet passed, so you are able to apply section 37(1)(ac) to the letter.
If you receive a request for the correspondence once January 2025 has passed, you will not be able to apply section 37(1)(ac) to withhold it.
How do we consider the balance of the public interest in sections 37(1)(ac) and (ad)?
Sections 37(ac) and (ad) are subject to a public interest test. This means that you can only withhold the requested information if the public interest in maintaining the exemption outweighs the public interest in disclosure.
The fact that the lives of the Royal Family are frequently the focus of public and media attention does not automatically mean that there is a public interest in disclosure, despite the likelihood that members of the public will be interested.
You should also avoid basing your public interest arguments purely around the seniority of the Royal Family member(s) in question. The focus of the test should be on the content and sensitivity of the information you are considering for release, not the individual’s position within the Royal Family.
The key public interest factors inherent in sections 37(ac) and (ad) are summarised below.
The public interest test
You should give appropriate weight to the general argument that disclosure promotes transparency and the accountability of public authorities.
If the information would broaden public understanding of the Royal Family’s constitutional role and the nature of its relationship with central government and other public authorities, the case for disclosure is strengthened. This is also the case if the information would help the public to understand what influence, if any, the Royal Family exerts in matters of public policy.
If the information infers that you gave unexpected weight to the views of the Royal Family then this further strengthens the arguments in favour of disclosure.
Conversely, if its release could help to reassure the public that you are not unduly influenced by the views of the Royal Family, this could also strengthen the argument in favour of disclosure.
If the information would further public debate about the constitutional role of the Royal Family or constitutional reform, this strengthens arguments in favour of disclosure.
Confidentiality of communications
Members of the Royal Family sometimes carry out public roles where their performance is dependent on maintaining the confidentiality of their communications with you. There is an inherent public interest in preserving that confidentiality where disclosure would compromise the ability of a Royal Family member to carry out their role.
For example, some members of the Royal Family perform ambassadorial roles in the form of official foreign visits and meetings with foreign dignitaries. If disclosure would hinder those ambassadorial functions then there is a strong public interest in maintaining the confidentiality of the information.
Example
A government department send a confidential briefing to a member of the Royal Family. The briefing contains its candid views on the head of state of a country they are scheduled to visit on an official engagement. The visit is part of a series of diplomatic actions by the UK government to improve relations with that country.
The department subsequently receives an FOI request for copies of any correspondence it has exchanged with the Royal Family in connection with the visit.
If the briefing was released it could lead to strained relations between the two countries and jeopardise the success of the royal visit. The family member’s ability to perform their role could therefore hinge on the briefing remaining confidential. In this case there is likely to be a strong public interest in maintaining the confidentiality of this communication.
Preservation of political neutrality
The Royal Family perform a wide variety of public and private roles and it follows that their communications could contain views and opinions on a whole range of subjects.
In some cases, the content (or context) of these communications may give the misleading impression that a member of the Royal Family holds a particular political viewpoint or preference.
There is an inherent public interest in preserving the political neutrality of the Royal Family. This is key to the stability of our constitutional democracy, and once lost cannot be restored. Therefore you should give some weight to this factor if you are satisfied that disclosure would compromise the political neutrality of the Royal Family.
Timing and security
Timing is an important factor in any case where the information relates to a public engagement. For example, a request for correspondence about a royal visit.
The public interest in withholding the information is likely to be very strong where:
- the engagement has still to take place; and
- the information contains details about the arrangements of the event, the disclosure of which would pose a security risk to the Royal Family.
However, there may still be a strong public interest argument for withholding material after the engagement, if it contains information that could undermine the security of future royal events.
There may also be some crossover with section 27 (national security) and section 38 (health and safety).
Public versus private life
Members of the Royal Family and Household are private individuals in their own right. This is significant because there is an inherent public interest in protecting the privacy of individuals.
There is also an inherent public interest in protecting the Royal Family’s dignity in order to preserve their position and fulfil their constitutional role.
However, the Royal Family’s unique role means that their public and private lives often overlap. Where they do, the public interest in preserving the Royal Family’s privacy and dignity is more likely to be a factor if:
- the information clearly relates to a private matter; and
- it concerns a situation where the individual in question would have had a reasonable expectation of privacy.
Where information is of a private nature, there may be some crossover with section 40 (the exemption for personal information) and section 41 (Information provided in confidence).
Safe space
There is an inherent public interest in allowing a ‘safe space’ for the Royal Family and public authorities to engage with each other in relation to their respective roles.
The disclosure of information about a live issue risks throwing a spotlight on any ongoing deliberations, and may leave those exposed by disclosure open to premature public or media scrutiny and pressure.
The need for safe space is a key factor in deciding whether the public interest lies in favour of maintaining the exemption. Similarly, the timing of the request is a crucial factor in determining the strength of any safe space arguments.
Once the issue is no longer live, there shouldn’t be any further need for safe space, and arguments for withholding the information on these grounds are unlikely to carry much weight.
Chilling effect
Disclosure of communications between the Royal Family and a public authority might inhibit both parties from exchanging free and frank views for fear that these might also be brought into the public domain. The resulting loss of frankness and candour could diminish the quality of advice provided by both parties, and lead to poorer decision-making. This is known as the chilling effect.
Chilling effect arguments carry most weight when the communications relate to an issue that is still live. If the issue is no longer live, then the arguments are likely to become weaker as time passes.
If you rely on this argument, you should detail the specific detriment you believe would arise from the disclosure of the particular information.
It is difficult to sustain a convincing argument, if you argue that disclosure would lead to a general chilling effect on any future communications with the Royal Family but make little reference to the information.
Our guidance on the public interest test contains further advice.
How do we apply section 37(1)(b)?
Section 37(1) is concerned with the awarding of honours and other types of award by the Crown.
37. – (1) Information is exempt information if it relates to…
(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).
Section 37(1)(b) provides an exemption for information relating to the conferring of any honour or dignity by the Crown.
The exemption under section 37(1)(b) is class-based so you do not have to demonstrate prejudice to engage the exemption. However, unlike section 37(1)(a), (aa) and (ab) it is qualified, rather than absolute which means that you have to conduct a public interest test.
The exemption preserves the integrity and robustness of the honours system in order to ensure that awards are conferred solely on merit.
Recipients often enjoy privileged positions, and, in some cases are entitled to take up public roles. For example, a working peer can take up a seat in the House of Lords.
The exemption is also important in protecting the confidentiality of individuals who have participated in the honours process.
The exemption only covers honours and awards conferred by the Crown. This means that you can’t apply it to information relating to honours and awards conferred by local authorities or other institutions. For example, international bodies, humanitarian groups or newspapers.
The definition of an honour or award
There is no legal definition of honour or dignity. The exemption can apply to, but is not limited to, the following:
- various orders of knighthood;
- appointment of Knights Bachelor;
- military medals and decorations;
- gallantry medals;
- other medals and decorations conferred by the Sovereign;
- other awards granted by the Sovereign;
- foreign or international awards where the Sovereign’s permission is required, or sought, to accept and wear them;
- creation of life peers;
- creation of hereditary titles;
- appointment of Lords and Vice-Lords Lieutenant;
- appointment of Governor-Generals, Governors and Lieutenant Governors; and
- appointments to the Privy Council.
You should interpret the term “relates to” broadly. This means that the scope of the exemption covers every aspect of the honours process from nomination, through to the publication of the honours list, and beyond.
It therefore encompass information such as:
- lists of nominees;
- discussions around the merits and achievements of nominees;
- third party submissions regarding the suitability of candidates;
- the reasoning behind the decision to confer or not to confer an honour or award;
- discussions surrounding the forfeiture of an honour or award;
- records relating to deceased nominees or award holders; and
- the policies and procedures that underpin the process (for example the qualifying conditions for a particular honour).
The following decision notice provides an illustration of how broad the scope of the exemption can be. It also demonstrates that the coverage of the exemption is not necessarily limited to material about the awards process itself.
Example
Mr Morland had made an FOI request to the Cabinet Office for minutes of an official meeting relating to proposals for a National Defence Medal for veterans.
The Cabinet Office refused his request, citing section 37(1)(b) and section 35. The Commissioner only considered section 37(1)(b) in her decision notice and upheld the Cabinet Office’s view.
Subsequently, Mr Morland appealed the decision and the Tribunal allowed his appeal on the basis that section 37(1)(b) was not engaged. The Cabinet Office then appealed to the Upper Tribunal (UT).
In Cabinet Office v the Information Commissioner and Morland [2018], UKUT (AAC), the UT initially found merit in the Tribunal’s approach and suggested that the statutory language “creates a mental picture of the act of bestowing a medal or other honour”.
After further analysis, the UT decided that the Tribunal had made a narrow interpretation and erred in law. The Tribunal’s “exclusive focus on the term ‘conferring’” led to it having insufficient regard to the rest of the statutory language and the stipulation that the information is exempt if it “relates to…the conferring by the Crown of any honour or dignity”.
The UT pointed to the case law that established that “relates to” has a broad meaning. There must be “some connection” (APPGER) with the information or it “‘touches or stands in relation to’ the object of the statutory provision”. “Relates to” and “any” emphasise the breadth of the statutory language and suggest that the exemption encompasses not only current honours but potential honours not yet in existence.
It agreed that the record of a debate about the criteria to be applied when conferring a hypothetical future honour “relates” as much “to the conferring of any honour or dignity…as information about the fate of the proposal to award a medal to a particular individual”.
Public interest test
Once you have established that the exemption is engaged, you need to consider if the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
For more information, read our detailed guidance on the public interest test.
Section 37(1)(b) and historical records
63. – (3) Information cannot be exempt information by virtue of section 37(1)(b) after the end of the period of sixty years beginning with the year following that in which the record containing the information was created.
Under section 63(3) information relating to honours and dignities remains exempt for a period of 60 years, after which you are no longer entitled to withhold the information. This 60 year period begins the year after the record containing the information is created.
Examples
In 2021, you receive a request for information that concerns a decision about an honour dating back to 1963. You therefore begin counting the sixty year period from 1964. You can apply section 37(1)(b) because 2024 has not been reached.
However, in 2021 you also receive a request for information dating back to 1955. You therefore count the sixty years from 1956. In this case, you can no longer apply this exemption as it elapsed in 2016.
You could still apply section 40 (personal data) or section 41 (information was provided in confidence).
How do we consider the balance of the public interest in section 37(1)(b)?
You should assess the public interest factors on the basis of the circumstances as they stood at the time you responded to the request or the statutory time for compliance, whichever is the earlier.
If your response is late, you should consider the public interest balance by reference to the statutory time by which you should have responded.
If you are considering information that is not current you cannot look at how the public interest may have stood at the time the information was created, as time may have shifted the weight of the public interest.
Factors in favour of disclosure
There is a general public interest in having an honours system that is objective, accountable and transparent so that the public can understand how and why decisions are made.
If the public can see how the process works then they are more likely to have confidence that honours are conferred on merit, and not on the basis of other factors. For example, a candidate’s connections or political views. It also help reassures the public that the relevant decision-makers are not subject to any form of undue influence.
If disclosure would help to further public debate around the criteria for conferring awards, the arguments in favour of disclosure are likely to carry additional weight.
Factors in favour of maintaining the exemption
Safe space
There is a safe space argument that relevant decision-makers should be able to discuss and evaluate each individual honours case on its own merits, free from pressure and scrutiny from the public, media, lobbyists and the candidates themselves.
Safe space arguments only carry weight where the nomination process is still ongoing. Once the decision to confer an honour has been taken, the need for safe space is no longer a factor as the risk of external pressures influencing the outcome has faded.
Confidentiality and the ‘chilling effect’
The honours process relies on the principle of confidentiality, both in terms of the views put forward by the members of the nomination committees and the submissions provided by third parties concerning the suitability of nominees.
There is a risk that the routine disclosure of the participants’ views through FOIA could erode that principle of confidentiality. This in turn could lead to a chilling effect, whereby participants will be less willing to express their free and frank opinions in future.
Such a loss of frankness and candour could result in poorer quality debate and decision-making and have a detrimental effect on the robustness of the nomination process.
The risk of a chilling effect is at its greatest during the nomination process and continues to be a significant issue in the period immediately following the publication of the honours list. However, the risk gradually begins to decrease as time passes and the participants’ expectations of confidentiality start to lessen, although it never diminishes entirely.
The nominees themselves are likely to have a reasonable expectation that their nominations will remain confidential until the honours list is officially published. Once the list has been published this should no longer be a factor.
Candidates who were nominated but did not receive an honour might expect this confidentiality to extend beyond the publication of the honours list. This is due to the potential distress and embarrassment they may suffer should this become public knowledge. In this situation, you must give strong weight to the heightened expectation of confidence those individuals might have. You have to balance the factors in favour of disclosure and those in favour of maintaining the exemption.
Balancing the public interest factors
You should consider the circumstances at the time the request is made. You can withhold the information if the public interest in maintaining the exemption outweighs that in disclosing it.
Example
The consideration of where the balance of the public interest lies in section 37(1)(b) was at the centre of Foreign & Commonwealth Office v the Information Commissioner and Jonathan Corke, EA/2019/0031 (29 January 2020).
The background to the appeal was the awarding of an honour to Harvey Weinstein by the Sovereign, who had made him an honorary Commander of the British Empire (CBE). Much later, in 2017, the New York Times published allegations of sexual misconduct that had been made against Harvey Weinstein. A request was made to the FCO for the information surrounding his nomination and the awarding of the honour. The FCO provided some press releases but refused to provide any other information, citing section 37(1)(b) and section 40(2).
The Commissioner acknowledged the public interest in non-disclosure to protect the confidentiality and the effectiveness of the honours system but said that, in the very specific matter of Harvey Weinstein’s honour, there was a significant and genuine public interest in his nomination and the process by which it was approved and that disclosure would directly address these points. The FCO appealed the Commissioner’s decision.
The Tribunal disagreed as to where the balance lay and allowed the appeal:
“21 The tribunal is satisfied that the FCO is correct to argue that the public interest balance to be struck with respect to the s37 exemption falls decisively in favour of non-disclosure…”
A significant factor in the Tribunal’s conclusion was the FCO’s two-hypothesis model against disclosure. If there was no evidence from 17 years ago, then the disclosure would only confirm the accuracy of the New York Times’s article which had stated that these allegations were a closely guarded secret until its publication. Disclosure therefore would not show any deficiencies in the system. Should there be evidence of allegations in the information, consultees may be unwilling to disclose any knowledge they might have of unpublished rumours for fear of them ultimately ending up in the public domain, whether they are true or false.
How do we apply the neither confirm nor deny provisions in section 37(2)?
37. – (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).
Section 1(1)(a) requires you to confirm or deny whether you hold the requested information.
However section 37(2) provides an exclusion from this duty where the information falls under one of the provisions of section 37(1). This provides you with the option to issue a neither confirm nor deny (NCND) response.
The process you must follow to apply section 37(2) differs, depending on whether the provision being claimed is absolute or qualified.
Issuing a NCND response where the information falls under an absolute exemption – sections 37(1)(a), 37(1)(aa) or 37(1)(ab)
If you are satisfied that one of the absolute provisions is engaged, then you can issue a NCND response without further qualification. There is no requirement to demonstrate prejudice or conduct a public interest test.
Generally, you need to use an NCND response if you have grounds to believe that confirming or denying the existence of the information would harm the interests the exemption is designed to protect.
If you don’t have any obvious need to rely on the NCND exclusion, then you may wish to consider issuing a “confirm or deny” response as usual.
Issuing an NCND response where the information falls under a qualified exemption – Sections 37(1)(ac), 37(1)(ad) or 37(1)(b)
If you are claiming a qualified provision, then the application of section 37(2) is subject to a public interest test.
This means that you are only able to issue a NCND response if the public interest in concealing whether the information is held outweighs the public interest in confirming or denying that it is held.
The public interest arguments should focus on the specific interests protected by the provision that would be engaged.
You must then balance these factors against the specific public interest in knowing whether you hold that information. Even if there is significant public interest in using NCND, you still need to confirm or deny if there is equal or stronger public interest in knowing whether you hold the information.
Example
In Christian Hazelwood v the Cabinet Office and the Information Commissioner, EA/2016/0204, (15 February 2017) the Tribunal considered an appeal by the complainant as to whether the Cabinet Office should have confirmed or denied whether it held the requested information. The requested information was whether an American global asset management firm had made an application for permission to use the word “Royal” in any of their subsidiaries operating in the UK.
The Commissioner had agreed with the Cabinet Office’s citing of neither confirm nor deny and accepted that doing so would reveal information exempt from disclosure. The Commissioner also agreed that the public interest lay in maintaining the exemption and neither confirming or denying whether it was held.
The Tribunal agreed that if the Cabinet Office was to confirm or deny that it held this information it would implicitly reveal the exempt information and that the public interest favoured non-disclosure.
Further advice on these provisions in FOIA is available in our separate guidance about ‘When to refuse to confirm or deny information is held‘.
How do sections 37(1)(a) to (ad) interact with other exemptions?
The nature of the information covered by sections 37(1)(a)–(ad) means that there may be some crossover with other FOIA exemptions. Other relevant exemptions that may interact with section 37 include:
- Personal data – requests may include personal information that would be exempt under section 40, for example disclosure of information concerning other identifiable individuals that is contained in information held about the Royal Family.
You should pay particular attention to section 40(4). This provides an exemption for personal information where the subject of that information would not be entitled to the information themselves under their right of subject access (Article 15(1) of the General Data Protection Regulation (GDPR)).
This is significant because the DPA 2018 states that personal information processed for the purposes of the “conferring by the Crown of any honour or dignity” is exempt from the right of subject access.
However, you only need to consider section 40(4A) where you can’t rely on section 37(1)(b).
You should also keep in mind that information only qualifies as personal information where it relates to a living individual. This means that you cannot apply section 40 to information about deceased individuals.
For further information on the application of section 40, please see our guidance ‘Personal information (section 40 and regulation 13)’.
- Information provided in confidence – If the scope of the request covers information provided by third parties regarding the merits and suitability of a nominee then there may also be some overlap with section 41. For more information on section 41, please see our guidance ‘Information provided in confidence‘.
This guidance relates only to FOIA. If the information is environmental, you need to consider exceptions under the Environmental Information Regulations (EIR).
There is other legislation which may be relevant to section 37 and that you may wish to consider when applying it:
- The Constitutional Reform and Governance Act 2010
- The Data Protection Act 2018
These examples are not exhaustive. Other exemptions may apply. As always it is the specific circumstances of the case that dictate the application of exemptions.
