Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

1.      This decision concerns the terms on which open material as defined in paragraph 3 is to be supplied pursuant to the tribunal’s procedural decision dated 22 April 2015.

2.      The open material as defined in paragraph 3 is to be supplied to other parties without restriction on their ability to publish that material.

3.      Open material for the purposes of the present decision comprises material supplied pursuant to the tribunal’s procedural decision dated 22 April 2015:

(1)   by the additional parties under paragraphs 2(1)(a) and (b) of that decision;

(2)   by the additional parties under paragraphs 2(1)(c) and (d) of that decision, insofar as supplied to the appellant;

(3)   by the appellant under paragraphs 2(2) and (4) of that decision; and

(4)   by the Commissioner and the additional parties under paragraph 2(3) of that decision.

REASONS FOR DECISION

A. Our procedural decision of 22 April 2015 (“the April 2015 decision”) concerned the next step towards the issue of decision notices in relation to Mr Evans’s appeals, namely the making of submissions by the parties as to the principles governing the redaction of personal data of individuals other than Prince Charles. The April 2015 decision set out a timetable for a staged process of written submissions in relation to proposed redactions.

B. As part of that process our April 2015 decision provided for Mr Evans to be given on 13 May 2015, subject to a proviso, copies of the documents or parts of documents which in September 2012 we had concluded must be disclosed to him. The proviso is that the copied material is to be subject to any “provisional redactions” asserted to be lawful in order to protect personal data of individuals other than Prince Charles. 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.

C. Our April 2015 decision also provides for (1) Mr Evans to receive on 13 May 2015 a schedule and open evidence and submissions prepared by the Departments in support of the provisional redactions; (2) Mr Evans to provide within the following 28 days his own schedule identifying matters he contests, along with his proposed directions for determining issues in that regard; (3) the Commissioner and the Departments within 14 days to provide submissions in response; and (4) Mr Evans within 14 days to provide submissions in reply.

D. In our decision today we refer to the material described in paragraphs B and C above as “the open material”. In addition our April 2015 provides for closed evidence and submissions by the Departments concerning matters which would or might identify an individual on whose behalf a provisional redaction has been made.

E. When issuing our April 2015 decision we were concerned that issues might arise as to the terms on which material falling within that decision was to be provided. In that regard we have now received submissions from the Departments urging that the open material should be kept confidential until our eventual decision notices have been issued, and submissions from Mr Evans and the Commissioner which for the most part submit that publication of the open material should be permitted. We have given the Departments an opportunity to file submissions in reply to what has been said by Mr Evans and the Commissioner, but the Departments have advised that they will not be doing so.

F. Mr Evans has no objection to closed submissions and evidence being provided only to the tribunal, the Commissioner and the Departments. That being the case, there is no need to add to what has already been provided in the April 2015 decision in that regard.

G. The Departments assert, as their first reason for keeping the open material confidential, that it is undesirable for disclosure of information to take place on a piecemeal basis. Mr Evans counters that he ought in 2005 to have been provided with (at least) the material referred to in paragraph B above, while the Commissioner adds that as a matter of practice piecemeal disclosure has taken place in other cases. For both these reasons we reject the Departments’ first reason for keeping the open material confidential.

H. The Departments’ remaining reason for keeping the open material confidential is that there is an implied undertaking that documents disclosed in the course of litigation will only be used for the purposes of the litigation. On that Mr Evans acknowledges that in court proceedings there is such an implied undertaking. He observes, however, that the present proceedings are tribunal proceedings, not court proceedings. The Upper Tribunal Rules do not contemplate any implied undertaking of the kind that applies to court proceedings. Moreover there is no suggestion that disclosure/publication would harm their own interests or the interests of any third party. We agree with both these observations, and with Mr Evans’s broader submissions that freedom to publish will be consistent with open justice and advance the aims of the Freedom of Information Act and the Environmental Information Regulations. For all these reasons we accordingly conclude the open material is to be supplied to other parties without restriction on their ability to publish that material.

Signed:

Paul Walker

John Angel

Suzanne Cosgrave

12 May 2015