First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2019/0333P
Before
Judge Stephen Cragg Q.C.
Tribunal Members
Marion Saunders
and
Stephen Shaw
Between
Christopher Hastings
Appellant
And
The Information Commissioner
HM Treasury
Respondents
Determined, by consent, on written evidence and submissions
Considered on the papers on 21 September 2020.
DECISION AND REASONS
1
DECISION
1. The appeal is partially allowed as described below and this determination
constitutes a substituted decision notice in relation to the part of appeal
that is allowed. For the reasons explained below, no further action is
required by HM Treasury (HMT).
MODE OF HEARING
2. The parties and the Tribunal agreed that this matter was suitable for
determination on the papers in accordance with rule 32 Chamber’s
Procedure Rules.
3. The Tribunal considered an agreed open bundle of evidence comprising
pages 1 to 105, together with additional open documents and a closed
bundle.
INTRODUCTION
4. The Appellant submitted the following requests to HM Treasury (HMT)
on 5 October 2018:
“I would like to request the following information under the
Freedom of Information Act… Please do treat any environmental
information as a request for information under The Environmental
Information Regulations (EIRS). Please note that I am only
interested in information generated between 5 October 2017 and
the present day. Please note that the reference to Prince Andrew
and the Duchess of York should include those two individuals as
well as their private offices. Please note that the reference to The
Chancellor should include the Prime Minster and her private office.
2
1…Since October 2017 has Prince Andrew and or the Duchess of
York written to The Chancellor about any of the issues listed below.
a..The upcoming wedding of their daughter to Princess Eugenie to
Jack Brooksbank and arrangements for the event.
b…The cost of the wedding and the possibility of tax payer support
for the event.
c…The possibility of an official title for Brooksbank once he is
married.
d…The couple’s official duties once they are married and or the
question of continuing financial support for the couple.
2…If the answer to Question one is yes can you please provide
copies of this correspondence and communication including
emails.
3…Did The Chancellor reply to the above correspondence and
communication?
4..If the answer is to question three is yes can you please provide
copies of this correspondence and communication including
emails.
In the event that relevant documentation has been destroyed. Can
you please supply the following details? In the case of each
destroyed piece of correspondence can you provide details of the
recipient, sender and date it was generated? In the case of each
destroyed piece of documentation can you please say when it was
destroyed? If the destroyed documentation continues to be held in
another form can you please provide copies of that
documentation.”
5. On 2 November 2018, HMT responded neither confirming nor denying
that any information was held within the scope of the request. HMT relied
upon s37(2) FOIA and s40(5B) FOIA.
6. There was an internal review of the decision on 3 November 2018 and on
19 February 2019 HMT wrote to the Appellant stating that the review
upheld the original decision.
7. The Appellant contacted the Commissioner on 20 February 2019 in order
to complain about the HMT’s failure to provide him with the information
he requested. On 4 July 2019 the Appellant asked the Commissioner to
3
additionally consider whether any part of his request should have been
handled under the EIR.
THE LAW AND COMMISSIONER’S DECISION
8. The right of access provided by FOIA is set out in section 1(1) and is
separated into two parts, both of which are relevant in this case.
9. Section 1(1)(a) FOIA gives an applicant the right to know whether a public
authority holds the information that has been requested.
10. Section 37 FOIA states:
“(1) Information is exempt information if it relates to—
(a) communications with the Sovereign,
(aa) communications with the heir to, or the person who is
for the time being second in line of succession to, the Throne,
(ab) communications with a person who has subsequently
acceded to the Throne or become heir to, or second in line to,
the Throne,
(ac) communications with other members of the Royal
Family (other than communications which fall within any of
paragraphs (a) to (ab) because they are made or received on
behalf of a person falling within any of those paragraphs),
and
(ad) communications with the Royal Household (other than
communications which fall within any of paragraphs (a) to
(ac) because they are made or received on behalf of a person
falling within any of those paragraphs), or (b) the conferring
by the Crown of any honour or dignity.
(2) The duty to confirm or deny does not arise in relation to
information which is (or if it were held by the public authority
would be) exempt information by virtue of subsection (1).
11. The Commissioner’s approach in the decision notice of 27 August 2019
was to consider the case under this section as it clearly related to
communications with the Royal Family as covered by s37(1)(ac) FOIA.
That would certainly be the position in relation to any communications
4
with the Duke of York, but is not so clear-cut in relation to any
communications with the Duchess of York, and we will return to this
question below.
12. The Commissioner also decided that the EIR were not relevant to this case.
This was because ‘based on the wording of the request, it is unlikely that
any information held would constitute environmental information within
the meaning of regulation 2(1) EIR’ (§20). The Commissioner also made
reference to a written explanation from HMT that had been provided in
confidence in this case.
13. Having decided that the information requested, if it existed, would be
covered by s37(1)(ac) FOIA, the Commissioner found as follows:-
22. Section 37(2) is also clear that a public authority is excluded
from the duty to confirm or deny whether it holds information
which is or if it were held by the public authority would be exempt
from disclosure by virtue of section 37(1)(ac).
23. The Commissioner is satisfied that confirming or denying
whether the information requested by the complainant is held
would reveal information which would otherwise be exempt under
section 37(1)(ac).
24. The public authority was therefore entitled to rely on the
exemption at section 37(2) FOIA.
14. The Commissioner then went on to consider whether the reliance on s37(2)
FOIA could be maintained once the public interest test in s2(1)(b) FOIA
was applied.
15. The Appellant argued that there was a strong public interest to know
whether members of the Royal Family had been ‘lobbying’ for financial
and other benefits which would be ‘above and beyond any constitutional
responsibilities they have’. HMT recognised that there was a public
5
interest in understanding the roles of members of the Royal Family, and
in confirming whether or not HMT held any correspondence with Duke
of York about the wedding of Princess Eugenie and related events. It also
pointed out that there was some information about the wedding available
on the Royal Household website, and that the accounts of the Royal
Household are published, audited by the National Audit Office and laid
before Parliament.
16. The other public interest arguments deployed against confirmation or
denial were (a) the strong public interest in members of the Royal Family
carrying out their duties while maintaining confidential communications;
(b) there was no particular or pressing public interest in any information
there might be; (c) media speculation was not the same as public interest;
(d) the topic-specific nature of the request meant that confirmation or
denial would reveal whether the information did or did not exist; (e) the
need not to undermine the work of the Royal Family; (f) the Duke of York’s
official role meant he had an expectation of confidentiality of
communications.
17. The Commissioner concluded that:-
‘… in order for members of the Royal Family to be able carry out
diplomatic and goodwill work they must be able to exchange
correspondence with public authorities with the expectation that
such information would be treated confidentially. Furthermore, the
Commissioner accepts that confirmation as to whether or not the
public authority held the requested information would reveal
whether the Duke of York, or Sarah, Duchess of York, had
corresponded with the Chancellor on specific issues. (§35)
18. The Commissioner thought that such a confirmation ‘would represent a
direct infringement of the principle that such communications are
considered to be confidential’. (§36). There was a genuine public interest
in how the wedding was funded but the Commissioner concluded ‘the
6
public interest in maintaining the exemption contained at section 37(2)
outweighs the public interest in complying with section 1(1)(a)’.
THE APPEAL AND RESPONSES
23. The Appellant filed an appeal to the decision notice on 12 September 2019.
He said that he thought it was highly likely that at least some of the
information held would come within the EIR (in which there is no exemption
such as that set out in s37(2) FOIA) given the implications of a Royal
Wedding for the environment. The Appellant also raised the public interest
in knowing whether the Royal Family had been lobbying ministers to
improve ‘their financial or constitutional position’. He noted that the
Duchess of York did not have a programme of official duties which entitled
her to privacy in her communications and doubted whether disclosure of
documents would have an adverse effect on the Duke of York’s discharge of
official duties. He was concerned about a blanket ban of Royal
correspondence and communications. He questioned whether the Duke of
York carried out official duties on a ‘goodwill basis’ and raised some issues
about the Duke’s relationship with Jeffrey Epstein which he thought the
Commissioner should have considered. He is concerned that in relation to
the EIR, the Commissioner has taken into account ‘confidential assurances’
from the HMT.
24. In response, the Commissioner and HMT re-iterate the points made in the
decision notice. The Commissioner makes more detailed submissions about
the applicability of the EIR which we will consider below. The HMT has
made reference to additional matters in the public domain already, such as
details of the Sovereign Grant, and answers to parliamentary questions about
the costs of policing the wedding and spending by other departments in
relation to the wedding.
7
25. The Commissioner’s Response also asserts that the Duchess of York is a
member of the Royal Family and therefore the exemption in s37(1)(ac) FOIA
applies to her. The Commissioner makes reference to her guidance on this
issue which reads, in full, as follows:-
28. There is no strict legal definition of the term ‘Royal Family’. As a
general rule it should be taken to mean all individuals who are entitled
to hold the title of ‘Majesty’ or ‘Royal Highness’ and their spouses.
29. If the authority is in any doubt about the status of the individual
concerned, it should consult the website of the British Monarchy
(www.royal.gov.uk) as this contains an official list of the current
members of the Royal Family.
30. Section 37(1)(ac) doesn’t cover communications with persons who
have subsequently become members of the Royal Family. This means
that, if a person has joined the Royal Family through marriage, any
communications that predate their membership of the Family will not
be covered by the exemption.
31. By the same measure, if the information relates to an individual
who has lost their Royal status, the exemption will only cover the
period during which that person was a member of the Royal Family.
26. Referring to the official website mentioned in paragraph 28 of the
Commissioner’s own guidance, it appears that the Duchess of York is not
included in the list of members of the Royal Family. That she is not a member
is certainly the view of the HMT in its Response to the Appeal, and it seems
to us that this is most likely to be right.
27. On that basis, as argued by HMT, the Tribunal will need to consider the
applicability of s40 FOIA to the Duchess of York (s40 FOIA would also apply
to the Duke of York as well, of course). We are able to do that even though
the Commissioner did not consider s40 FOIA in the decision notice, as
explained in IC v 1. Malnick; 2. ACOBA [2018] UKUT 72 (AAC):-
109.We summarise the effect of our analysis on the role of the FTT where
8
a public authority has relied on two exemptions (‘E1’ and ‘E2’) and the
Commissioner decides that E1 applies and does not consider E2.
…where the FTT disagrees with the Commissioner’s conclusion on E1 it
must consider whether E2 applies and substitute a decision notice
accordingly.
28. The Appellant has filed a number of replies to these Responses. His main
points continue to be the strength of the public interest in the Duke of York
being able to have confidential communications, and whether that is
applicable when the request is for information which does not relate to
official duties, and the relevance (generally and with particular reference to
the Duke of York) as to whether official duties are carried out on a good will
basis or not.
29. He has also made references to events which have occurred since HMT and
the Commissioner made their decisions (such as the revelation by the Duke
of York of personal details in the Newsnight interview in late 2019). These
references are not relevant to the Tribunal which is charged with considering
whether there has been an error of law in the Commissioner’s decision made
in August 2019.
30. We have also received two witness statements from HMT. There is a witness
statement from Eirian Walsh Atkins who is a Deputy Director in the Cabinet
Office with responsibility for freedom of information dated 4 February 2020.
This provides general background to freedom of information and the Royal
Family, details of information already in the public domain, the principle that
communications between the Royal Family and ministers should remain
confidential (subject to the public interest test) to assist the discharge of
public duties, and the reasonable expectation of privacy for members of the
Royal Family.
31. There is also a statement from David Fairbrother, of the same date, who is
the Treasury Officer of Accounts at HMT and whose responsibilities include
9
the payment of the Sovereign Grant to the Royal Household. His statement
explains how the Appellant’s request was dealt with, but also sets out HMT’s
role in relation to the finances of the Royal Family, the information in the
public domain and the accountability mechanisms which already relate to
the Royal Family’s finances. There are redacted sections of the statement
which are necessarily only available to the Tribunal in a closed version,
which deal with the issue in question in this case: whether or not HMT holds
the information requested.
DISCUSSION
Environmental Information Regulations
32. It is important to decide whether the EIR are engaged in this case because, as
the Appellant notes, there is no equivalent to s37(1)(ac) FOIA in the EIR.
Regulation 2 EIR contains the following definition of environmental
information:-
“environmental information” has the same meaning as in Article 2(1) of
the Directive, namely any information in written, visual, aural,
electronic or any other material form on–
(a) the state of the elements of the environment, such as air and
atmosphere, water, soil, land, landscape and natural sites including
wetlands, coastal and marine areas, biological diversity and its
components, including genetically modified organisms, and the
interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste,
including radioactive waste, emissions, discharges and other
releases into the environment, affecting or likely to affect the
elements of the environment referred to in (a)
(c) measures (including administrative measures), such as
policies, legislation, plans, programmes, environmental
agreements, and activities affecting or likely to affect the elements
and factors referred to in (a) and (b) as well as measures or activities
designed to protect those elements
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions
used within the framework of the measures and activities referred
to in (c); and
10
(f) the state of human health and safety, including the
contamination of the food chain, where relevant, conditions of
human life, cultural sites and built structures inasmuch as they are
or may be affected by the state of the elements of the environment
referred to in (a) or, through those elements, by any of the matters
referred to in (b) and (c).
33. Regulation 5 EIR obliges a public authority that holds environmental
information to make it available on request, subject to other provisions of
the EIR. However, the case-law makes it clear that, although there should
be a wide interpretation of what is ‘environmental information’,
information ‘which has only a minimal connection with the environment is
not environmental information’: see DfT, DVSA and Porsche Cars GB Ltd v
IC and Cieslik [2018] UKUT 127 (AAC), §33.
34. The only part of the request in this appeal which could conceivably have a
connection with the environment relates to information as to the
arrangements for the wedding. It seems to us that this is the epitome of a
case where there is only a tenuous relationship with the environment, in the
sense that any event where a number of people congregate will have some
influence on the environment. There is no part of the definition of
environmental information in reg 2 EIR which comes close to including the
information which relates to arrangements for a wedding. In our view, the
Commissioner was correct to treat this as a case where the FOIA provides
the applicable statutory framework.
Section 37 FOIA
35. In our view, in relation to the Duke of York and any communications which
may exist in relation to him and the HMT the position clearly comes within
the exemption in s37(1)(ac) FOIA. As that is the case, then s37(2) FOIA
applies to permit HMT (subject to the public interest test) to neither confirm
11
nor deny that the requested information is held.
36. Therefore, the real issue is whether the balance of the public interest
nevertheless requires HMT to confirm or deny that it holds the information.
37. It is recognised that there is a public interest in understanding details about
a royal wedding, how it is arranged and funded and how it will affect the
future of the married couple. There is a public interest in knowing whether
the Duke of York requested financial or other assistance in paying for the
wedding. However, it is sheer speculation as to whether any requests were
made, and the available evidence is that the Duke of York supports his
children from private income (see his website referred to by HMT). There
are also a number of accountability mechanisms described by Mr
Fairbrother which provide oversight of the finances and funding of the
Royal Family.
38. We understand the Appellant’s doubts about the nature of the Duke of
York’s public duties, and whether confirming or denying whether the
information is held would have much of an effect on those duties (as they
were at the time of the request), carried out on a goodwill basis or not.
39. However, in our view there is a strong public interest in allowing free
communications between the Royal Family and ministers to enable the
Royal Family to carry out its public functions, and to help maintain the
political neutrality, its dignity and its constitutional role in unifying the
nation. It is not a blanket ban on disclosing whether documentation exists
as the public interest balance can come down in favour of an applicant in
appropriate cases.
40. But in this case, given the nature of the information sought, the other
financial oversight mechanisms available, and the information already in
the public domain about the wedding, there is, in truth, not a great public
12
interest in knowing whether the Duke of York did or did not contact HMT
about the cost of the wedding (which was the real issue in the purview of
HMT), or about the other issues mentioned (which do not seem to be within
the purview of HMT in any event).
41. In our view, this low public interest in confirming or denying that the
information is held, means that it is outweighed by the public interest in
confidentiality of communications between the Royal Family and ministers,
and the other matters mentioned in paragraph 39. In other cases, where the
public interest in confirming or denying might be higher, we can envisage
the balance being struck differently, but not on the facts of this case.
Section 40 FOIA
42. As the Appellant has asked for disclosure of communications from the
Duchess of York, and as the Duchess of York is not a member of the Royal
Family, the exemption in s37(1)(ac) FOIA does not apply to any such
communications. For that reason, HMT have relied upon s40 FOIA to resist
confirming or denying whether such communications are held. As
mentioned above, there is no reason why s40 FOIA will not also apply to
the Duke of York.
43. Section 40 (2) FOIA reads as follows:-
(2) Any information to which a request for information relates is
also exempt information if—
(a) it constitutes personal data which does not fall within
subsection (1) (personal information of the applicant], and
(b) the first, second or third condition below is satisfied.
44. Section 3(2) of the DPA 2018 defines personal data as ‘“any information
relating to an identified or identifiable living individual”.
13
45. The relevant condition (as referred to in s40(2) FOIA) in this case is found in
s40(3A)(a):
(3A) The first condition is that the disclosure of the information to
a member of the public otherwise than under this Act—
(a) would contravene any of the data protection principles.
46. Under s40(7) FOIA the relevant data protection principles in this case are to
be found in Article 5(1) of the GDPR. Materially, Article 5(1)(a) reads:-
Personal data shall be:
(a) processed lawfully, fairly and in a transparent manner in
relation to the data subject (‘lawfulness, fairness and
transparency’).
47. Further, by Article 6(1) GDPR:-
Processing shall be lawful only if and to the extent that at least one
of the following applies:
(a) the data subject has given consent to the processing of his
or her personal data for one or more specific purposes;
…
(f) processing is necessary for the purposes of the legitimate
interests pursued by the controller or by a third party, except
where such interests are overridden by the interests or
fundamental rights and freedoms of the data subject which
require protection of personal data…
48. The issue in this case is whether on the basis of section 40(5B) FOIA HMT is
entitled to refuse to confirm or deny whether it holds personal data falling
within the scope of the request. S40(5B) reads, materially:-
(5B) The duty to confirm or deny does not arise in relation to other
information if or to the extent that any of the following applies—
(a) giving a member of the public the confirmation or denial
that would have to be given to comply with section 1(1)(a)—
(i) would (apart from this Act) contravene any of the
data protection principle
14
49. Thus s40(5B)(a)(i) FOIA provides that the duty to confirm or deny whether
information is held does not arise if it would contravene any of the data
protection principles to provide that confirmation or denial.
50. If HMT confirmed that it held information falling within the scope of the
request it would reveal whether the Duchess of York had communicated with
HMT about the matters referred to in the request, namely issues concerning
her daughter’s wedding and associated matters. This would clearly disclose
something of biographical significance about the Duchess of York and so amounts
to her personal data, as well as the personal data of others such as Princess
Eugenie and Mr Brooksbank.
51. In relation to lawfulness, there is a legitimate interest in the public knowing
whether there has been communication with HMT about the wedding, as
explained above in the discussion of the application of s37(2) FOIA, and that
analysis is referred here. HMT has acknowledged the general interest in
transparency and accountability.
52. However, in our view it would not be necessary for HMT to confirm or deny
whether the requested information is held is in order to serve this particular
interest, given the information already available in the public domain.
53. Even if confirmation or denial were necessary to serve the interest, in our view
(for the reasons set out above in relation to public interest and s37 FOIA), the
legitimate interest is not a strong one. It does not, in our view, override the
reasonable expectation of privacy of the Duchess of York (and the Duke of
York, Princess Eugenie and Mr Brooksbank) in relation to communications
with ministers, information about a family wedding and its costs, and whether
or not the bridegroom was to receive a title, and whether or not the couple
would carry out official duties.
54. For those reasons, in our view, the exemption to the duty to confirm or deny
whether the information is held, contained in s40(5B) FOIA was rightly
15
applied by HMT in this case in relation to any communications between the
Duchess of York and HMT, and would also apply to any communications
from the Duke of York.
CONCLUSION
55. To the extent that the Commissioner found that s37(1)(ac) FOIA applies to
communications with the Duchess of York, then this appeal succeeds as, in our
view (and that of HMT) that is not the case. However, there is no further action
for HMT to take as we have found that s40(5B) FOIA would apply to such
communications.
56. Therefore, the appeal is allowed in part and to the extent it is allowed, this
decision constitutes a substituted decision notice. Otherwise the appeal is
dismissed.
Stephen Cragg QC
(Judge of the First-tier Tribunal)
Date: 5 October 2020.
Date Promulgated: 6 October 2020
16