15^th September 2009 FOI: 60842

Dear Mr. Cross,

Thank you for your email of 14 August requesting the following information:

1. Any representations made by Her Majesty, other members of the Royal Family or the Royal Household might have made in respect of UK Freedom of Information law or policy during the calendar years 2008 and 2009.

2. In addition I am considering making a second request Please let me know how many weeks worth of Royal Correspondence (starting from 14 August 2009 working backwards) I can request without exceeding the cost limit.

Your request for information has been handled under the Freedom of Information Act 2000 (`the Act').

I can confirm that the Ministry of Justice (MOJ) does hold information falling within the scope of your first question.

This information is however exempt under Section 35(1)(a) (formulation or development of government policy), section 37(1)(a) (communications with Her Majesty etc.), section 40(2) (personal data) and section 41(1) (information provided in confidence).

Further details of these exemptions are set out below:

Section 35 (1)(A) Formulation and development of government policy.

Section 35(1)(a) provides that information is exempt if it relates to the formulation or development of government policy. We consider this exemption is engaged in this instance. It is, however, subject to a public interest test, and I have therefore considered whether the public interest falls in favour of releasing the information, or whether it falls in favour of maintaining the exemption and withholding the information you seek.

We recognise that the decisions taken by Ministers may have a significant impact on the lives of citizens and there is a public interest in this process being transparent.  We also recognise that greater transparency makes government more accountable to the electorate and increases trust.  There is a public interest in providing the public with the information it needs to satisfy itself that the process by which government develops policy is of a high quality.  In addition, we recognise that as knowledge of the way government works increases, the public contribution to the policy making process could become more effective and broadly-based.

On the other hand, there is a very strong public interest in withholding this information.  We consider that there is a pressing need to protect the policy space so that officials can consider all policy options - including those received from outside government - without fear of their discussions being disclosed prematurely. Furthermore, it is extremely important that government policy has the strongest possible evidence base. Disclosure of information in response to this and similar cases would be detrimental to this, to the extent that stakeholders would be less prepared to make representations about matters of interest to them, to the overall detriment of the policy development process.

Having considered all the relevant arguments, I believe the balance of public interest falls in favour of withholding the information covered by section 35(1)(a) of the Act.

Section 37 (1) (a) Communications with her Majesty etc.

Section 37(1) (a) exempts information if it relates to communications with Her Majesty, with other Members of the Royal Family or with the Royal Household. This exemption is subject to the public interest test and I have therefore considered whether the public interest falls in favour of releasing the information, or whether it falls in favour of maintaining the exemption..

We recognise there is a public interest in the role of the Royal Family generally and specifically with regard to their interaction with Government. We also acknowledge that there is a specific public interest with regard to any information held in this context, given the operation of the Act and the Prime Minister's announcement on 10 June that Government will look to provide greater protection for sensitive `Royal' papers.

On the other hand, there is a very strong public interest in withholding this information because of the historical and constitutional importance of the Convention referred to below. In weighing the respective public interests, we consider that extremely strong arguments for disclosure must be shown in order to outweigh the public interest in withholding this information. In favour of maintaining the exemption it must be noted that there is a well established constitutional Convention that correspondence between the Sovereign and Government is confidential in nature. The Convention is an adjunct to the right of the Sovereign to be consulted by her Government, and to advise, encourage and warn the Government as appropriate. The rights of the Sovereign could not be exercised effectively in the absence of confidentiality, as the political neutrality of the Sovereign could not be preserved. These communications are regarded as subject to expectations of confidence, and it is of considerable public interest that they be treated as such.

Having considered all the arguments, I believe the balance of public interest falls in favour of withholding the information exempt under section 37(1)(a) of the Act.

Section 40 (2) Personal data

Section 40(2) exempts personal information from disclosure if that information relates to someone other than the applicant, and if disclosure of that information would, amongst other things, contravene one of the data protection principles in schedule 1 of the Data Protection Act 1998. In this case, I believe disclosure would contravene the first data protection principle, which provides that personal data must be processed fairly and lawfully. Section 40(2) is an absolute exemption and the Ministry of Justice is not obliged to consider whether the public interest favours disclosing the information.

Section 41 (1) Information provided in confidence.

Section 41 (1) provides an exemption to the right of access where disclosure to the public of information that has been provided to the Ministry of Justice by another person would constitute an actionable breach of confidence. It is our view that some of the information in your request falls under this exemption. This is an absolute exemption and therefore not subject to a public interest test.

We do not hold any information falling within the scope of your second question. As previously advised in correspondence of 14 August in response to your previous request (our reference: 60161), we do not hold recorded information stating how many weeks or days worth of correspondence requester could get within the cost limit. To identify this, we would need to locate, retrieve and extract all relevant information, that would, in essence, take longer than 3.5 working days and would there engage section 12.

As part of our obligations under the FOIA, the Ministry of Justice has an independent review process. If you are dissatisfied with this decision, you may write to request an internal review. The internal review will be carried out by someone who did not make the original decision, and they will re-assess how the Department handled the original request.

If you wish to request an internal review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the following address:

Data Access and Compliance Unit

Information Directorate

6th Floor

Post point 6.25

102 Petty France

London

SW1H 9AJ

E-mail: [email address]

If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner's Office under Section 50 of the FOIA. You can contact the Information Commissioner's Office at the following address:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Internet: https://www.ico.gov.uk/Global/contact_us.aspx

Yours sincerely

Rhian Williams

Data Access and Compliance Unit.