Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Upper Tribunal of the Administrative Appeals Chamber reversed the Information Commissioner’s decision and held that advocacy correspondence between the heir to the British throne and government ministers does not deserve special protection. Rob Evans, journalist with U.K. newspaper, The Guardian, filed information requests for correspondence between Prince Charles and several U.K. government ministers. The Tribunal reasoned that “advocacy correspondence”, namely correspondence in which interests of charitable enterprises are promoted, concerns matters affecting public policy and the public purse and therefore there is a strong public interest in its disclosure that in this case outweighed the interest in confidentiality.
This case analysis was contributed by Right2Info.org.
In April 2005 Guardian journalist Rob Evans filed information requests for correspondence between Prince Charles and several U.K. government ministers during the period between 1 September 2004 and 1 April 2005. Mr. Evans contended that disclosure of the correspondence would be in the public interest, at least to the extent that the correspondence involved ’advocacy’ on the part of Prince Charles. 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 (FOI 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).
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’. The Tribunal did not identify information to be disclosed, but gave directions for such decision to be made.
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. The ruling did not entitle Mr. Evans to disclosure of ‘purely social or personal correspondence’ between the parties concerned.
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. ‘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’. 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. 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’ and thus the views he was promoting were the matters of ‘a real debate generating widespread public interest’. The latter encompassed ‘a legitimate interest in knowing what [government] have been doing’.
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’. 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’ .
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’. 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’. Interests of such enterprises also affected many aspects of the work of the departments raising ‘important constitutional issues’. 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, it concluded that ‘the balance is likely to be not only clear, but also strongly, and sometimes very strongly, in favour of disclosure’.
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The decision was subsequently affirmed by the U.K. Supreme Court following the Attorney General’s exercise of power under the Freedom of Information Act 2000 (FOIA), s 53, to overrule the Upper Tribunal’s decision to disclose the information. The Supreme Court held that the FOIA 2000, s 53, did not permit the Attorney General to override the decision of a judicial tribunal or Court by issuing a certificate merely because he, considering the same facts and arguments, took a different view from that taken by the tribunal or Court.
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