The Freedom of Information Act: it's not working for the Prince of Wales but it could work for you

Prince Charles is clearly having one of those days.

Earlier, he was at the radio station, Kiss FM, 'getting down wiv da kidz' and reportedly being referred to as 'da main man'.

I'd guess that not many 'main men' sport double-breasted suits complete with pocket squares but perhaps my knowledge of the urban music scene isn't what it used to be? Perhaps the DJ at Kiss FM confused him with Prince—sorry, the artist formally known as 'Prince' (or 'Prince logo.svg')?

But I'm digressing a tad.

Of undoubted greater concern to the future monarch—and indeed the government—is this morning's judgment of the Court of Appeal on the Freedom of Information Act 2000.

Using the powers under this Act, the Guardian journalist, Rob Evans, made an application some time ago to request the disclosure of various letters which were written by the Prince and sent to a number of government departments between 2004 and 2005.

Today, the Court of Appeal ruled that the Prince's letters can be published and that the Attorney-General, Dominic Grieve, acted unlawfully when he blocked the publication of the letters.

So what's the big deal?

Essentially, the Act confers a right of access for the public to nuggets of information held by or for public authorities (subject to the odd exception). The right was introduced in the first term of the 1997 - 2010 Labour administration.

In his memoirs, Tony Blair considered carefully whether he thought the Act had been successful:

You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.

Successful then Mr Blair? That’s probably a ‘no’.

Indeed, I would hazard a guess that the Prince might be minded to agree with the former PM's analysis today.

Many politicians and civil servants believe that the Act is having a chilling effect on the way they work with each other; worried as they are that open and frank discourse is discouraged if they know that their discussions can ultimately be published. And this is where the Prince's letters come in.

It would seem that the letters contain particularly frank information and that their release might compromise the political neutrality of the Prince.

This explains the Attorney-General's approach to this matter in 2012:

The Prince of Wales engaged in this correspondence with Ministers with the expectation that it would be confidential. Disclosure of the correspondence could damage The Prince of Wales’ ability to perform his duties when he becomes King. It is a matter of the highest importance within our constitutional framework that the Monarch is a politically neutral figure able to engage in confidence with the Government of the day, whatever its political colour. In my view, there is nothing in the nature or content of this particular correspondence which outweighs that strong public interest against disclosure.

Today, however, the court ruled that the Attorney-General did not have reasonable grounds to block the disclosure and indeed that the certificate which he issued was 'incompatible with EU law' (eg the EU Charter of Fundamental Rights).

So where does this leave us now?

As it happens, this is by no means the end of the story. The Editor in Chief of the Guardian reported this morning that the Attorney-General is due to appeal this decision.

This matter will clearly not be resolved for some time yet.

What this seminal case does show is what a great empowering tool the Act is. It can shine a light on many government activities. When the Act first came out most businesses in the country issued a large collective yawn and went about their daily business distinctly unbothered by its new ‘legal torch’.

However, many businesses in the know now use it to obtain valuable information, whether it be commercial intelligence (such as on other players in the market) or greater detail on government policies.

Of course, there are exemptions to this general rule (aren't there always?), for example:

  • Section 41: an absolute exemption which relates to information provided in confidence
  • Section 43(1): a qualified exemption, subject to a public interest test, which relates to information that is a trade secret
  • Section 43(2): a qualified exemption, subject to a public interest test, which relates to information which if disclosed would, or would be likely to, prejudice a person's commercial interests

So, if you fancy making a freedom of information request, details of how to do so is set out here. Bear in mind that certain information is not subject to the Act. For example, a public body can turn down a request if it thinks it will cost it more than £450 to deal with (£600 for a central government organisation).

It is also worth having a scout around the ICO's Knowledge Base (ie its data base of know-how on the operation of the Freedom of Information Act 2000). Ironically, a freedom of information request from us to the ICO reveals this Knowledge Base is disappearing soon (from a date yet to be determined). A decision was made a year or so back to embed ‘as much of [the] knowledgebase content as possible into [the ICO's] published guidance’ to ensure a coherent and consistent approach.

We think that this database is extremely useful as it sets out the 'lines to take' that ought to be taken on specific freedom of information matters. Some of this should eventually find its way into new guidance but it seems very likely that some of it won't. Accordingly, if you want to know more about how the Act works in specific areas, you'd be wise to look at the Knowledge Base now before it disappears into the ether forever.

That said, you could always do your own freedom of information request in the future on the Freedom of Information Act (and the ICO's detailed approach to it) like we did.

Or perhaps you'll be just a tad busy running a business?

Why not leave it to us at Comet to let you know what matters and what doesn't. We're good like that...

PS Thanks to the Act, here are some examples of what we learnt in 2012:

  • The five most expensive wines currently in stock in the Government Hospitality cellar (Spoiler alert - it isn't Blue Nun or White Tower)
  • Traffic cones cost £11 each and the Highways Agency has 3,900 of them (Is that all? Who owns all of the others?)
  • Lambeth Council spent £1,072 on a swishing video (No, I don’t know what this is and, to be fair, I don’t want to know either)

Area of Interest