Evans, R (On the Application Of) v The Information Commissioner

An accountable person acting under section 53(2) of the Freedom of Information Act 2000 cannot override a reasonable and unappealed decision of an independent tribunal merely because he reaches a different view of the public-interest balance. Reasonable grounds require something more, such as a material change of circumstances or a demonstrable factual or legal flaw in the tribunal’s decision.

For environmental information, an executive certificate which displaces a tribunal’s disclosure decision is incompatible with article 6(2) and (3) of the Environmental Information Directive 2003/4/EC. Judicial review of the certificate is not an adequate substitute because it reviews the accountable person’s opinion, not the original refusal, and does not preserve the tribunal decision as final and binding.

A journalist sought correspondence between the Prince of Wales and Government Departments under the Freedom of Information Act 2000 and the Environmental Information Regulations. The Departments refused disclosure and the Information Commissioner upheld their decisions.

The Upper Tribunal, after an extensive hearing and closed consideration of the documents, held that advocacy correspondence should generally be disclosed. The Attorney General did not appeal that decision. Instead, he issued a certificate under section 53(2) of the Act, purporting to override it. The Divisional Court dismissed the journalist’s judicial-review challenge.

The appeal concerned the meaning of “reasonable grounds” in section 53(2), the compatibility of an executive override with EU environmental-information law, and whether illegality concerning environmental information invalidated the whole certificate.

1. Appeal allowed. The Attorney General’s section 53(2) certificate was quashed.

2. The question whether grounds are reasonable is objective and depends on context. Where an independent and impartial tribunal has reached a reasonable, unappealed decision after a full adversarial examination of the same issue, an accountable person cannot reasonably override it by mere disagreement. More is required, such as a material change of circumstances or a demonstrable error of fact or law. The Upper Tribunal had conducted a detailed and fair examination, its decision was not challenged as erroneous, and the Attorney General relied on no new material. His contrary assessment of the public interest therefore did not constitute reasonable grounds.

3. In relation to environmental information, section 53(2) was incompatible with article 6(2) and (3) of the Environmental Information Directive 2003/4/EC. Those provisions require review of the refusing public authority’s act or omission by an independent court or body, whose decision may become final and binding. Judicial review of a certificate addresses the accountable person’s opinion rather than the underlying refusal. It cannot preserve the final and binding character of the tribunal’s decision, which may otherwise be rendered ineffective by the executive.

4. The certificate was unlawful in its entirety. Although it considered environmental and non-environmental information separately, it did not show that the Attorney General had considered how mandatory disclosure of environmental information would affect the public-interest balance concerning the remaining correspondence. That was a material consideration.

5. The court observed that the statement in Birkett concerning a de novo review under article 6(2) formed part of that court’s essential reasoning. It was unnecessary, however, to decide whether article 6(2) invariably requires a full merits review rather than a sufficiently flexible judicial-review standard.

• Court of Appeal (Civil Division): Allowed the appeal and quashed the Attorney General’s certificate: [2014] EWCA Civ 254.
• Divisional Court, Administrative Court: Dismissed the journalist’s application for judicial review of the certificate.
• Upper Tribunal: Held that the advocacy correspondence should generally be disclosed. The Government Departments did not seek permission to appeal.
• Information Commissioner: Upheld the Departments’ refusals to disclose the requested correspondence.