Although the actual content of the recently released “Black Spider” letters, a collection of 27 “private” letters and memos penned by the Prince of Wales to government ministers, may have been an anti-climax for many and certain newspapers in particular, the road to their release has not been without controversy or complexity.
The release of these letters written between September 2004 and April 2005, was the culmination of a 10 year campaign by the Guardian newspaper to see this correspondence made public. In April 2005 one of the newspaper’s journalists made a request for disclosure of communications between various government departments and the Prince of Wales. The request was made under the Freedom of Information Act 2000 (“FOIA”) and also under the Environmental Information Regulations 2004 (“EIR”). The FOIA enables members of the public to see documents held by many public bodies, subject to certain exemptions, and the EIR operates to provide access to documents containing ‘environmental information’, again subject to certain exemptions. The seven government departments that received these requests refused to disclose the documents on the basis that this correspondence was exempt from disclosure, and this decision was upheld by the Information Commissioner.
The Information Commissioner’s decision was appealed and, after a six day trial in 2012 the Upper Tribunal decided that some, but not all of the correspondence should be released. The government departments did not appeal this decision. However, under FOIA legislation the Attorney General, on behalf of the government, was entitled to issue a certificate within 20 days of the decision, certifying that he believed on reasonable grounds that there was no failure by the government departments to comply with their duties under FOIA, and thus that the correspondence should not be released.
The Guardian then sought a judicial review of the Attorney General’s decision to issue the certificate at all. The court dismissed the application but this decision was overturned by the Court of Appeal, and the Attorney General was granted permission to appeal to the Supreme Court. The Attorney General lost that appeal and this led to the recent release of the correspondence.
While this case has appeared to be concerned primarily with the content of the correspondence of the heir to the throne, surprisingly perhaps neither the Court of Appeal or the Supreme Court had sight of it prior to handing down their judgments. The principal issue for the Supreme Court to decide was the validity of the Attorney General’s certificate issued to prevent disclosure of the correspondence following the ruling of the Information Tribunal that it should be released.
What does seem certain is that it is very unlikely that there will ever be such a case again. In 2010 the FOIA legislation was amended so as to include an absolute exemption on release of communications with the monarch and the two nearest heirs to the throne, where these communications are written after 2010.
Notwithstanding this the debate about what is private and what is not, continues unabashed.
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