Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The Supreme Court of the United Kingdom held that pursuant to the country’s Freedom of Information Act of 2000, the Environmental Information Regulations of 2004, and the E.U. Council Directive 2003/4/EC, the government was obligated to fully disclose Prince of Wale’s advocacy communications with various government ministers. It also ruled that in the absence of a reasonable ground, the final order of a judicial body in granting access to information held by a public authority cannot be overturned by the government.
Charles, Prince of Wales, wrote series of letters and memos, known as the “black spider” memos, to ministers of various government departments between September 2004 and March 2005. The correspondence contained Prince Charles’ views on a number of matters, including politically controversial issues, proposed legislations, environmental information, and other matters of public policy.
In April 2005, a journalist for the Guardian newspaper (Claimant) requested the departments to disclose the letters pursuant to the Freedom of Information Act of 2000 (FOIA) and the Environmental Information Regulations of 2004 (EIR). In response, the departments refused to disclose them on the ground that the letters were exempt from disclosure under sections 37, 40, and 41 of FOIA and other relevant provisions of EIR.
Subsequently, the Claimant filed a complaint with the Information Commissioner. In December 2009, the Commissioner upheld the departments’ refusal to disclose the letters. The Claimant then appealed the decision to the Upper Tribunal, which determined that many of the letters contained advocacy communications and must be disclosed to the public.
Following the decision, the Attorney General issued a certificate, alleging that there were reasonable grounds to establish that the government was not entitled to disclose the letters. The Court of Appeal in Evans v. Attorney General,  EWCA Civ 254, granted the Claimant’s request to quash the certificate.
On November 12, 2014, the Attorney General appealed the decision to the Supreme Court of the United Kingdom.
Lord Neuberger delivered the Court’s opinion.
The first issue before the Court was whether the letters communicated between Prince Charles and ministers of various government departments should be disclosed upon the claimant’s request.
The Court first outlined the applicable laws on this issue. Part I of FOIA affords the right of access to information held by public authorities, subject to a number of qualified and absolute exemptions. Section 37 of Part II creates an absolute exemption in relation to communications with the Sovereign, other members of the Royal Family or the Royal Household. Section 40 of Part II accords an absolute exemption on personal information, and Section 41 equally exempts information, which its disclosure would constitute a breach of confidentiality. In addition, EIR is a regulation for the purpose of effectuating the U.K. government’s obligation to implement the E.U. Directive 2003/4/EC (Directive). Regulation 5 of EIR mandates public authorities to disclose environmental information upon request.
The Court ruled that the Claimant was entitled to the full disclosure of Prince Charles’ advocacy communications with ministers because it was “in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government.” [p. 12] The Court however emphasized that the Claimant was not entitled to disclosure of “purely social or personal communications.” [p. 12]
The second issue was whether the Attorney General’s certificate against the Upper Tribunal’s final order to disclose the letters was valid under FOIA and the Directive. The Court agreed with the Claimant that Section 53 of FOIA, as well as Article 6 of the Directive did not permit the Attorney General to issue a certificate contrary to the Upper Tribunal’s decision. The Court found it was unreasonable for the Attorney General “to issue a section 53 certificate simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public hearing.” [p. 30] It held that even though FOIA grants the government the power to overrule a judicial decision only on reasonable grounds, the Attorney General’s certificate undermined the fundamental principle that “a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive.” [p. 38]
Based on the foregoing reasons, the Supreme Court dismissed the Attorney General’s appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision mainly concerns the right to access public information and it is important in two respects. First, the Supreme Court of the United Kingdom made it clear that the disclosure of advocacy communications between public authorities generally outweighs the public interest in its non-disclosure. Second, the Court limited the government’s power to deny the right by upholding the principle that the final order of a judicial body in giving access to information held by public authority cannot be overturned by the executive.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
Regulation 5 of the EIR 2004 provides that a public authority that holds environmental information shall make it available on request.
I was not able to find sufficient information on this case due to the lack of available court documents .
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court’s decision constitutes a binding authority on the U.K. Court of Appeals and Divisional Courts.
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