R (on the application of Evans) v. Attorney General  EWCA Civ 254
England and Wales Court of Appeal
A journalist challenged the Attorney General’s decision to issue a certificate under the Freedom of Information Act and Environmental Information rules preventing disclosure of “advocacy correspondence” written by Prince Charles to government ministers. Paras. 1, 3. The information sought included “environmental information.” In issuing the certificate, the Attorney General overrode a decision by the Upper Tribunal directing the correspondence to be disclosed. Para. 3.
The Freedom of Information Act allows the Attorney General to override certain decisions if he has “reasonable grounds” for doing so. In this case, the Attorney General's reasonable grounds were that he had “formed the opinion that the Departments had been entitled to refuse the requests for disclosure.” Para. 19. The Court of Appeal rejected this defense, noting that “reasonableness” in this context requires more than a mere disagreement with the decision of the tribunal; rather, it requires a material change in circumstances or a finding that the tribunal made a demonstrable flaw in law or fact. Para. 37-39.
The Court went on to consider whether the provisions of the Freedom of Information Act invoked by the Attorney General were consistent with the EU Environmental Information Directive. It concluded that use of the veto to overrule a tribunal’s decision violated the Directive because it denied the petitioner access to an independent and impartial body established by law in which the acts or omissions of the public authority can be reviewed and resolved in a final and binding decision. The Court declared: “A judicial review of the certificate of an accountable person is substantively different from a review by a court or other independent body of the acts or omissions of ‘the public body concerned.’” Para. 55. Conferring the authority to the Attorney General to override decisions of an administrative tribunal means that decision ceases to be final and binding. Para. 56.
For those reasons the Attorney General’s certificate was quashed. Para. 81.