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Rob Evans v. Information Commissioner

Case number:
[2012] UKUT 313 (AAC)
Country:
United Kingdom
Date of decision:
18 September 2012
Court / Arbiter:
Upper Tribunal, Administrative Appeals Chamber (UTAAC), Superior court of record with status equivalent to the High Court ( Appellate )


Decision:

Advocacy correspondence between the heir to the throne and government ministers does not fall within constitutional convention and does not deserve special protection; correspondence in which interests of charitable enterprises are promoted concerns matters affecting public policy and the public purse and thus there is a strong public interest in its disclosure that in this case outweighs the interests in secrecy.


Keywords:
Correspondence
Deliberations / Advice (including free and frank provision of advice within and among public bodies, executive privilege, internal documents, opinions, analyses, reports)
Environment / Natural resources (including natural resource management, environmental impact)
Environmental rules
Harm (including harm to legitimate interest, harm test)
Head of state / Government (including president, monarch, cabinet)
Open government principles (including accountability, anti-corruption, democracy, participation in government, transparency)
Oversight bodies (including information commission, judicial review, ombuds office)
Privacy (harm to private interests, including life, health, safety)
Public interest (including public interest override, information of public interest)
RTI law
Regulations

Case details:

Facts

In April 2005 Guardian journalist Rob Evans filed information requests for correspondence between Prince Charles and several United Kingdom government ministers (para. 1) during the period between 1 September 2004 and 1 April 2005 (para. 10). Mr. Evans contended that disclosure of the correspondence would be in the public interest, at least to the extent that the correspondence involves advocacyon the part of Prince Charles (para. 1). The journalist requested: (i) a list of correspondence sent by Prince Charles to each minister, identifying recipient, sender, and the date of each item; (ii) a similar list of correspondence sent by each minister; (iii) complete copies of each piece of correspondence listed; and (iv) a schedule giving a brief description of each document relevant to the request (para. 10).

Seven government departments addressed confirmed that they held correspondence falling within the scope of the journalist’s request, but refused to produce any of the information sought (para. 12).  The departments asserted that all the disputed information fell within the constitutional convention that the heir to the throne should be educated in the way and workings of government (para. 34(1)). It allowed Prince Charles to interact with government and learn about its business in order to prepare for kingship (para. 112(2).

The Information Commissioner upheld the refusals, but adopted a narrower interpretation of the constitutional convention, in particular it found that it would not cover ‘correspondence (if any) concerning Prince Charles’s charitable work or information of a particularly personal nature’ (para. 34(1)). Where the information fell outside the scope of the convention, the Commissioner found it to be exempt under the Freedom of Information Act exemptions related to communications with the Royal Family (para. 34), personal data (para. 36) and a breach of confidence (para. 39). As to environmental information sought, the Commissioner invoked exemptions under Environmental Information Regulations, namely that its disclosure would harm Prince Charles as it would have a chilling effect on the way in which he corresponds with ministers (para. 42), and that it would adversely impact on the Prince’s position of political neutrality and harm his privacy and dignity (para. 45).

Decision

In the decision supplemented by three open annexes, the Tribunal upheld Mr Evans’ contentions that the Commissioner applied the wrong principles and found that ‘under relevant legislative provisions [he would], in the circumstances of the present case, generally be entitled to disclosure of “advocacy correspondence” falling within his requests’, because it would be ‘in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government’ (para. 5). The Tribunal did not identify information to be disclosed, but gave directions for such decision to be made (para. 251).

The Tribunal explained from the outset that its ruling concerned ‘advocacy correspondence’, i.e., correspondence by means of which Prince Charles sought to advocate for particular views and/or to advance the work of certain charities (para. 7). The ruling did not entitle Mr. Evans to disclosure of ‘purely social or personal correspondence’ between the parties concerned (para. 5).

The Tribunal upheld the journalist’s view that the education convention was limited in scope. More specifically, it did not extend to cover advocacy correspondence by the heir to the throne (para. 105). ‘It would be inconsistent with the […] convention [as to the role of the monarch] to afford constitutional status to the communication by Prince Charles, rather than the Queen, of encouragement or warning which ministers might then take account of’ (para. 106).

The Tribunal first analyzed the factors favoring disclosure of information. It found that promotion of good governance through accountability and the debate about the extent and nature of interaction between government and royal family weighed strongly in favor of disclosure in the public interest (para. 131 and 142). Prince Charles enjoyed ‘privileged access to ministers’, which meant that ‘correspondence from him […] will quickly come to the attention of the minister, who is likely to take a personal interest’ (para. 156) and thus the views he was promoting were the matters of ‘a real debate generating widespread public interest’ (para. 157). The latter encompassed ‘a legitimate interest in knowing what [government] have been doing’ (para. 160).

Regarding the factors favoring non-disclosure, the Tribunal expressed skepticism that disclosure would have a chilling effect on Prince Charles’s future communication with government: ‘there is good reason to think that Prince Charles will not […] cease to make points to government that in his view need to be made’ (para. 196). As to the argument of adverse impact on public perception of the Prince’s position, the Tribunal stated that ‘criticism within the law is the right of all, no matter how wrongheaded those on high may consider the criticism to be’ (para. 188).

The Tribunal assessed the public interest balance by ‘aggregat[ing] all public interests in non-disclosure […] and assessing the weight of their cumulative effect against the weight [...] [given] to the public interests in disclosure’ (para. 207). According to the Tribunal, advocacy correspondence generally concerned matters affecting both public policy and ‘the public purse’, thus the public interest in knowing what interests of charitable enterprises had been promoted was ‘likely to be at least as great as it would in a commercial context’ (para. 209). Interests of such enterprises also affected many aspects of the work of the departments raising ‘important constitutional issues’ (para. 214). Since the Tribunal found no reasons to award correspondence between Prince Charles and ministers greater protection than to those others seeking to advance the work of charities (para. 211), it concluded that ‘the balance is likely to be not only clear, but also strongly, and sometimes very strongly, in favour of disclosure’ (para. 214).

Note:

With effect from 19 January 2011 section 37 of the Freedom of Information Act was amended to confer the status of absolute exemption on the exemptions under the clause. Under the new version no public authority is required by the Act to provide information relating to Prince Charles at a time when he was the heir to the throne (para. 49). Mr. Evans, however, requested the information before this change to the law.

On 16 October 2012 the Attorney General issued a certificate under the Freedom of Information Act, vetoing the disclosure of the correspondence. The Attorney General highlighted the need to maintain confidentiality: ‘without such confidentiality both the Prince of Wales and Ministers will feel seriously inhibited from exchanging views candidly and frankly, and this would damage the Prince of Wales’ preparation for kingship’ (para. 10). The certificate was signed under Section 53 of the Freedom of Information Act (s. 53) which is also known as a ‘ministerial veto’ or an “executive override”. Thus far, a certificate has been issued on six occasions, including the present one.

On 8 May 2013, the Guardian launched a lawsuit to overturn the veto.

On 9 July 2013, the Administrative Court dismissed the Guardian’s claim for judicial review (para. 142). The Court held that the Attorney General had shown “reasonable grounds” for certifying the departure from the Upper Tribunal’s decision (para. 112). The Court engaged in a lengthy discussion regarding the intensity of the review to be applied in relation to s. 53. According to the Court, the judiciary should not be required to consider “any less than (albeit no more than) the existence of reasonable grounds”. Although s. 53 provides for executive override of judicial decisions thus creating “a very sensitive situation, calling for appropriately close scrutiny by the courts”, nothing in the language of the section “either requires or entitles the reviewing court to substitute its own opinion as to where the balance of public interest lies” (para. 89). Having said that, the Court held that in the present case the views and reasons expressed in the certificate made “sense”, were “proper and rational” and “cogent” (para. 113). The Court also found that s. 53 as applied to environmental information, was not incompatible with the Directive or inconsistent with the Aarhus Convention. The requirement under Article 6.2 of the Directive to provide access to a “review procedure” by an impartial and independent tribunal was met by the United Kingdom by providing for a judicial reasonableness review of the certificate (para. 128).Obiter dictum, the Court noted that s. 53 was “a remarkable provision”, in particular because of “a lack of comparable provisions in any other domestic statute” (paras. 79-80). However, it could not be regarded as constitutionally objectionable since the Parliament had provided for a number of considerations to mediate the procedure, the primary one being the availability of the judicial review (paras. 81 and 106).

On 26 July 2013, three high court judges gave a permission to the Guardian to appeal against the 9th of July ruling.

Resources:

Judgment of the Upper Tribunal.

Annexes to the judgment.

Summary for media of the judgment.

Attorney General’s certificate and statement of reasons.

Judgment of the Administrative Court.