Section 41 - Communications with His Majesty etc.

Challenge a refusal under FOISA section 41 - the authority says the information relates to communications with the Royal Family or the exercise of the prerogative of honour

What this exemption means#

The authority is saying the information relates to communications with the King, members of the Royal Family, or the Royal Household - or to the exercise of the prerogative of honour (the honours system).

This is a qualified exemption and is class-based, meaning the authority does not need to demonstrate specific harm. However, it must still carry out a public interest test.

What the authority must show#

Section 41 has two limbs:

Section 41(a) - the information relates to communications with the King, with other members of the Royal Family, or with the Royal Household
Section 41(b) - the information relates to the exercise by His Majesty of the Royal prerogative of honour

For section 41(a), the authority must show that:

The information is genuinely a communication with the King, Royal Family, or Royal Household - or relates to such a communication

For section 41(b), the authority must show that:

The information relates to the exercise of the prerogative of honour - the process by which knighthoods, military medals, gallantry awards, peerages, and Privy Council appointments are considered and conferred (including decisions not to confer them)

Time limits#

This exemption doesn’t last forever:

Section 41(a): generally cannot apply to information more than 20 years after creation or 5 years after the death of the relevant person, whichever is later
Section 41(b): generally cannot apply to information more than 60 years old

Things to check#

Is the information actually a communication with royalty? Section 41(a) covers direct communications - letters, emails, meeting notes - between a public authority and the King, Royal Family members, or the Royal Household. Information that merely mentions or is about a Royal Family member is not automatically covered. The information must relate to a genuine communication.
This is a very narrow exemption. It is rarely used. If you receive a section 41 refusal, look carefully at whether the information genuinely falls within its scope.
Was the Royal Household consulted? The Section 60 Code of Practice expects authorities to consult the Royal Household before applying section 41(a). This is good practice rather than a legal condition of the exemption, but if no consultation happened, you can ask how the authority satisfied itself that the exemption applies.
Did they consider the public interest? Even though this is class-based, the authority must still carry out a public interest test. There may be a strong public interest in transparency - particularly where the information relates to the use of public resources, policy influence, or matters of significant public concern.

Use the interactive tool#

Answer the questions below to check whether section 41 has been properly applied to your request.

What the evidence shows

Arguments that have supported disclosure

In cases where the public interest test favoured disclosure, these themes appeared most often.

Transparency in government There is a strong public interest in transparency about how government engages with the Royal Household
Scrutiny of decision-making The public has a right to examine how decisions are made and to hold government accountable
Historical public interest Where a topic has become a matter of public controversy or historical significance, that strengthens the case for disclosure

What authorities typically argue

These are the arguments authorities most commonly make when withholding information under this exemption. Knowing them helps you prepare a stronger case.

Integrity of the honours system Authorities argue the honours system depends on absolute confidentiality so that views can be expressed freely and candidly
Maintaining Royal-Government relations There is a public interest in preserving the good working relationship between the Royal Household and Scottish Government
Protecting the political neutrality of the monarchy Disclosure of communications could draw the monarchy into political controversy
Deterring future nominations and candour If honours deliberations are disclosed, people may be deterred from making nominations or offering frank assessments

Factors that tipped the balance

In decisions where the Commissioner ordered disclosure, these factors were decisive.

Passage of time The Commissioner found that after many decades, the information was no longer capable of causing the harm the authority claimed
Content was routine and brief The information was so brief and routine that its disclosure would not have the significant inhibiting effect the authority argued
Arguments for harm were unpersuasive The Commissioner's assessment was that the authority's specific claims about damage to political neutrality or future candour were not supported

Based on published decisions of the Scottish Information Commissioner. You can browse the decisions on the Commissioner's website.