Section 37 FOIA (communications with Her Majesty, with other members of the Royal Family or with the Royal Household) was originally a qualified exemption. It has recently been elevated to an absolute one. Brown v IC and Attorney-General (EA/2011/0002) is a new tribunal decision under the old (qualified exemption) regime. It is worth noting for the approach to this exemption, given how rarely it has (until now) surfaced in FOIA litigation.

The case concerned the process for dealing with Royal Wills – in particular the manner in which Royal Wills come to be sealed such that they are not available for public inspection without an application being granted by the Family Court. The Tribunal noted that the primary objective of this practice is the protection of the privacy of the Sovereign. The Appellant, who believes himself to be the illegitimate son of the late Princess Margaret, requested a copy of what had been described orally during earlier court proceedings as a “Practice Direction in respect of the handling of Royal Wills”. The Attorney-General refused, relying on section 37 and the public interest. The Commissioner – and now the Tribunal – have upheld the refusal. The Tribunal found, inter alia, that the practice for sealing Royal Wills raises no constitutional issues concerning the separation of powers.

No analysis and commentary from me on this one, given my involvement in the case (I appeared for the Commissioner, with Jonathan Swift QC for the Attorney-General), but the decision can be found here.