Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

1.      The suspension imposed by the interim order dated 7 November 2012 is lifted with effect from 26 March 2015.

2.      In order to enable the tribunal to consider what redaction should be permitted so as to protect personal data of individuals other than Prince Charles, in accordance with such further directions as may be given by the tribunal:

(1)   The additional parties shall no later than 4pm on Wednesday 13 May 2015 lodge with the tribunal and provide to other parties:

(a)    subject to any “provisional redactions” asserted to be lawful in order to protect personal data of individuals other than Prince Charles, copies of the documents or parts of documents which the closed annex to the September 2012 decision states must be disclosed; the provisional redactions must be clearly identified so as to distinguish them from any other redactions which the tribunal may have determined should be made.

(b)   a schedule giving for each relevant document an anonymised identifier for each individual whose data has been redacted and setting out in relation to that individual the reasons for the redaction; in the case of an individual whose personal data have been redacted from more than one document, the same identifier shall be used in relation to each document;

(c)    any evidence upon which they rely in support of their case for the redactions, bearing in mind the guidance given in paragraph 5 of Open Annex 4 dated 12 October 2012; in this regard:

(i)        such evidence must address, among other things, whether the individual is now living, and if not the date on which the individual died;

(ii)      such evidence must, among other things, also address, as at the date of the document and any other date said by the additional parties to be relevant, the profession of the individual, the name or type of organisation for which the individual worked, the seniority of the individual within that organisation, and the extent to which the individual had at the date of the document or has on any later date sought or been the subject of public debate or media reporting or comment;

(iii)    evidence which would or might identify the individual concerned shall be provided only to the tribunal and the Commissioner.

(d)   open and, to the extent necessary, closed submissions in support of their case that the data in question constitute personal data which should be redacted under section 40 of the Freedom of Information Act 2000 or regulation 13 of the Environmental Information Regulations 2004.

(2)   Within 28 days of compliance with paragraph (1) by the additional parties, the appellant must lodge with the tribunal and copy to other parties a schedule identifying:

(a)    such of the “provisional redactions”, and assertions and evidence supplied to him in support of them, as he contests; and

(b)   proposed directions for determining such issues as may arise in that regard.

(3)   Within 14 days of compliance with paragraph (2) by the appellant, the Commissioner and the additional parties must lodge with the tribunal and copy to other parties their submissions in response as to proposed directions.

(4)   Within 14 days of compliance with paragraph (3) by the Commissioner and the additional parties, the appellant must lodge with the tribunal and copy to other parties his submissions in reply as to proposed directions.

(5)   The tribunal will thereafter give further directions.

REASONS FOR DECISION

A. The tribunal’s decision of 18 September 2012 (“the September 2012 decision”) allowed the appeals of Mr Evans. At that stage the tribunal deferred its consideration of substituted decision notices in order to enable the parties to make submissions as to the principles governing the redaction of personal data of individuals other than Prince Charles. In a procedural decision dated 12 October 2012 the tribunal set out a timetable for a staged process of written submissions in relation to proposed redactions.

B. That process, however, was suspended by an interim order dated 7 November 2012, made in the light of the Attorney General’s certificate dated 16 October 2012. The certificate ceased to have effect following the Supreme Court’s order dated 26 March 2015 and published on 15 April 2015.

C.  In these circumstances all parties are content that the staged process should resume. Dates for each stage of the process have now been specified in directions given by the tribunal today. These dates recognise the amount of work that will need to be done, and will identify by 8 July 2015 what can be agreed by the parties and what, if any, issues remain. In the interim the parties have been asked to provide written submissions as to the terms on which documents and other material necessary to resolve relevant issues are to be supplied. It is likely to be necessary for the tribunal to give further directions. What those directions will be, and whether any further hearing is required, must await events. The tribunal nevertheless expects that any issues as to proposed redactions will be resolved by 31 July 2015.

                                                                                                            Signed:

                                                                                                            Paul Walker

                                                                                                            John Angel

                                                                                                            Suzanne Cosgrave

                                                                                                            22 April 2015