The Attorney General for the Prince of Wales v The Information Commissioner & Anor

For the functional category of public authority, an entity must be entrusted by the applicable legal regime with services of public interest and vested with special powers for that purpose. The CJEU formulation is binding guidance, but must be applied flexibly and consistently with the structure and purposes of the Environmental Information Regulations 2004 and the Directive.

A name describing property, a title, or persons acting for an owner does not itself create a separate legal person or public authority. A natural person who is a public authority only through a discrete public function may be subject to disclosure duties only for environmental information held in that capacity.

Mr Bruton requested environmental information from the Duchy of Cornwall. The request was refused on the basis that the Duchy was not a public authority. The Information Commissioner upheld that refusal, but the First-tier Tribunal held that the Duchy was a body or other legal person and a public authority under the Environmental Information Regulations 2004.

The Attorney General for the Prince of Wales appealed. The parties accepted that the Prince of Wales, as Duke of Cornwall and harbour and lighthouse authority for St Mary’s harbour in the Isles of Scilly, carried out functions of public administration. The central issues were whether the Duchy had a separate legal identity and whether the Duke’s other roles made him a public authority for all environmental information that he held.

1. Appeal allowed. The Duchy of Cornwall was not a public authority under the Environmental Information Regulations 2004 or Directive 2003/4. It had no legal personality or identity separate from the Duke of Cornwall, save where its name was used as a description of him.

2. The 1337 Charter and subsequent legislation vested the Duchy estate in the Duke, subject to special limitations. They did not create a corporation, body or entity called the Duchy. References in contracts, accounts, explanatory material and other documents to the Duchy as though it were an entity could not create one. The persons administering the estate acted for and on behalf of the Duke.

3. Under the functional test derived from Fish Legal v Information Commissioner [2014] 2 WLR 568, the relevant legal regime must entrust a legal person with services of public interest and vest it with special powers for that purpose. The Duke’s ceremonial and official roles, ownership and management of the Duchy estate, bona vacantia role, and other asserted powers did not satisfy that test. They did not make him part of the public administration or executive, and no relevant special powers were shown.

4. The Duke was, on the parties’ concession, a public authority as harbour and lighthouse authority for St Mary’s harbour. The Tribunal held that the hybridity principle applied to a natural person in that position. His disclosure obligations therefore extended only to environmental information held by him as harbour authority. This accommodated his rights to private life under article 8 of the Convention and article 7 of the Charter.

5. Alternatively, if hybridity did not apply, the comparatively minor harbour function, the onerous wider disclosure duties, and the intrusion into private information would justify excluding the Duke under a fact-sensitive de minimis approach.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Attorney General’s appeal and set aside the conclusion that the Duchy was a public authority.
• First-tier Tribunal: held that the Duchy was a body or other legal person and directed disclosure of the requested environmental information.