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laura_coogan_phOn 24 and 25 November 2014, the Supreme Court heard the case of R (Evans) v Her Majesty’s Attorney-General.

Background

The case relates to a request for information made in April 2005 by a journalist at The Guardian. The request was made under the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations (“EIR”). 

The request was for written communications that had passed between The Prince of Wales and various Government departments from 1 September 2004 to 1 April 2005. These communications included correspondence relating to certain causes which were of particular interest to The Prince of Wales. These included causes relating to the environment.

The Government departments denied disclosure under sections 37, 40 and 41 of FOIA (these containing exemptions in relation to (i) communications with Her Majesty or other members of the Royal Family or the Royal Household, (ii) personal information, and (iii) information provided in confidence respectively). The decision to withhold the information was subsequently upheld by the Information Commissioner.

An appeal of the Information Commissioner’s decision was made to the Upper Tribunal and on 18 September 2012 the Upper Tribunal handed down a decision in which it disagreed with the decision notice that had been issued by the Information Commissioner. In a long and reasoned judgment, the Upper Tribunal held that it was in the public interest for some of the information that had been requested (what it called the “advocacy correspondence”) to be disclosed.

In response to this, on 16 October 2012 the Attorney General issued a certificate under section 53 of FOIA. This section of the Act provides that an “accountable person” can issue a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure to comply with the FOIA. The Attorney General’s certificate acted to undo the requirement to disclose the advocacy correspondence. The certificate also applies to the request made under the EIR.

Judicial Review

The journalist made a judicial review claim in respect of the Attorney General’s decision to issue the certificate. The Court rejected the judicial review challenge and held that the Attorney General’s reasons for exercising the veto under section 53 were reasonable since they were “cogent and not irrational”. The Court accepted that the public interest lay in allowing the Prince of Wales to prepare for Kingship and his participation in the “advocacy correspondence” was part of this preparation.

The Court of Appeal

The journalist appealed this decision to the Court of Appeal. There were four issues before the Court of Appeal, as follows:

  1. What the test is for determining whether an accountable person has “reasonable grounds”;
  2. Whether the Attorney General failed to show reasonable grounds;
  3. Whether issuing a section 53 certificate to “override” a decision of the Upper Tribunal is compatible with EU law; and
  4. Whether any unlawfulness of the Attorney General’s decision relating to the environmental information tainted the entirety of the certificate.

The Court of Appeal held as follows:

  1. It is not reasonable for an accountable person to issue a section 53 certificate simply because he disagrees with the decision that has been reached. The Court suggested something such as a material change in circumstances or an error in fact or law would be necessary;
  2. The Attorney General did not have reasonable grounds: the decision of the Upper Tribunal had not been challenged in fact or law, or for being unreasonable;
  3. Section 53(2) of FOIA is not compatible with EU law; and
  4. The whole of the certificate was tainted by the breach of EU law. While some of the information that formed the request was not environmental information, the Attorney General failed to deal with the environmental information and non-environmental information in a distinct way.

The Supreme Court

The Attorney General was given leave to appeal to the Supreme Court. The case was heard by Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes.