Under section 41 of FOISA, information is exempt from disclosure if it relates to:
- communications with the King, with other members of the Royal Family or with the Royal Household (section 41(a)); or
- the awarding of honours by the King (section 41(b)).
The section 41 exemptions are sometimes referred to as "class-based" exemptions. This means that an exemption will apply if the information falls within a particular class of information (e.g. communications with the King). Unlike most other exemptions, an authority does not have to demonstrate that disclosure would cause harm before applying one of the section 41 exemptions.
The exemptions in section 41 are both subject to the public interest test in FOISA. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.
The exemptions in section 41 don't last forever. Our briefing explains the complex rules for when the exemptions will, and will not, apply.
The exemption in section 41(b) generally can't be applied to information that is more than 60 years old. The 60-year period recognises that, traditionally, the honours system is a process carried out in secret.
With both of the exemptions in section 41, a public authority can refuse to confirm or deny whether it holds information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).
When the First Minister disagrees with a decision from the Commissioner given to the Scottish Administration concerning the exemption in section 41(b) (but not section 41(a)), the First Minister can overrule the Commissioner's decision, provided the information is of exceptional sensitivity and provided the First Minister has consulted with other members of the Scottish Government (section 52 of FOISA). At the date of publication of this guidance, this power has never been used.