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Duchy of Cornwall subject to Environmental Information Regulations

The First-tier Tribunal has ruled that the Duchy of Cornwall is a public authority under the Environmental Information Regulations. The Duchy was established by Charter in 1337 to provide an income for the eldest living son of the Monarch and heir apparent who automatically inherits the title Duke of Cornwall.  The Charter provides that the Duke is entitled to the income from the Duchy but not to the capital, thereby preserving the estate for his successors.

In evidence to the Tribunal, the Secretary and Keeper of the Records of the Duchy, confirmed that:

the estate currently comprises some 53,628 hectares of land and around 2,100 hectares of woodlands mostly in the south west of England, together with around 258 km (160 miles) of coastline, the Isles of Scilly, the navigable riverbed of the Tamar, most Cornish rivers and some rivers in Devon.

The case involved a request for information made by Michael Bruton, an environmentalist, who had become concerned about the introduction of non-native Pacific oysters at an oyster farm in Port Navas within the Duchy. Mr Bruton asked the Duchy for details of any consents or permissions given to the tenant of the oyster farm and details of any environmental assessments carried out regarding the impact of the oyster farm’s activities. The Duchy refused on the basis it was not a public authority for the purposes of the EIR, a decision which the Information Commissioner upheld. The questions for the Tribunal were whether the Duchy was a public authority under regulations 2(2)(c) or (d) of the EIR. In other words:

a) Whether the Duchy is a body or other person, and

b) If so, whether it carries out functions of public administration, or

c) Whether the Duchy is under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of

Both the Information Commissioner and Duchy argued that the Duchy is not a separate legal entity. Referring the Upper Tribunal’s decision in Smartsource, that the notion of ‘public authority’ is both place and time specific, the Tribunal disagreed:

whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR.

The Tribunal went on to consider whether the Duchy had functions of public administration.

The Tribunal’s ruling is the latest twist regarding the public’s rights to information about the Royal Family [see earlier post]. The Royal Family itself is not subject to the FOI Act and, following an amendment to the Act introduced in [to come], there now an absolute exemption for communications [to come] with the monarch, heir and second in line to the throne. However, this amendment does not apply retrospectively, so requests made before [to come] must be considered under the qualified exemption. A number of such requests are currently being appealed to the Tribunal. In addition, a number of requests for Prince Charles letters will be dealt with under the EIR, where no absolute exemption for his communications exist.

Finally, the Tribunal’s latest decision also opens the door for the Tribunal to re-consider whether the Duchy of Lancaster is subject to the EIR. In Cross [to come] the Tribunal found it did not come under regulation 2(2)(c) because the

Access to information held in complaints files

Updated October 2011.

This letter to the Deputy Commissioner, David Smith, raises a number of concerns about the Information Commissioner’s data protection guidance on ‘Access to Information Held in Complaints Files’. The Deputy Commission replied to the letter saying the Campaign’s comments would be taken into account should the guidance be revised.

 

Speech on future of FOI by Lord McNally

The Ministry of Justice has published the full text of a speech given by Lord McNally at the Westminster Legal Policy Forum event ‘The future of freedom of information – challenges for expansion‘ which was held on 20 October 2011.

You can download the speech as a Word document here.

Parliamentary debates on extension of the FOI Act

The Freedom of Information (Designation as Public Authorities) Order 2011 was debated and approved by both Houses of Parliament this week. The Order was made under section 5 of the FOI Act, which provides for the Secretary of State to extend the Act to bodies with public functions or to contractors providing public services on behalf of authorities (where the provision of the service is a function of the authority). The Order designated three additional bodies – the Association of Chief Police Officers, Financial Ombudsman Service and the Universities and Colleges Admissions Service – as public authorities for the purposes of the Act.
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MPs debate Hillsborough documents petition

On 17 October, MPs debated the e-petition signed by over 140,000 people calling for full disclosure of documents relating to the 1989 Hillsborough disaster, in which 96 Liverpool fans died.
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Letter to Health Secretary about the effect of the NHS reforms on the public’s FOI rights

Letter to the Health Secretary, Andrew Lansley, expressing concern that the public’s FOI are likely to be “significantly curtailed” by the NHS reforms. The Health Minister, Lord Howe, replied to the Campaign’s letter.

Central government FOI statistics Apr-June 2011

The quarterly FOI statistics for central government have been published for the period April to June 2011. The figures show that the Cabinet Office, which, along with Ministry Defence, was required to sign an undertaking by the Information Commissioner earlier this year to improve compliance, answered less than half of requests within 20 working days.
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Commissioner marks International Right to Know Day

News release: 28 September 2011

‘Transparency is not just about what the authorities choose to reveal to citizens; but what citizens have a right to ask to see,’ Information Commissioner, Christopher Graham, said today, in a speech to mark International Right to Know Day 2011.
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Commissioner orders extracts from note of Blair/Bush telephone discussion to be disclosed

The Information Commissioner has ordered the Foreign and Commonwealth Office to disclose extracts from a note of a telephone conversation between Tony Blair and George Bush on 12 March 2003, shortly before the decision to go to war against Iraq (Decision Notice FS50341647). The Commissioner found that the exemptions for international relations (sections 27(1)(a) and 27(2)) and ministerial communications (s.35(1)(b)) applied to the information. In respect of information supplied by President Bush to Prime Minister Blair, he found the public interest in withholding the information outweighed the public interest in disclosure. However, for information that wasn’t obtained from the US, which concerned the Iraq issue only from the UK perspective, the public interest favoured disclosure.
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Commissioner orders partial disclosure of previously vetoed minutes

The Information Commissioner has again considered whether minutes of meetings of the cabinet sub-committee on devolution from 1997/8 should be disclosed under the Freedom of Information Act. These minutes were the subject of an earlier FOI request made in 2005. The Commissioner had ordered them to be disclosed (Decision Notice FS50100665). The Cabinet Office appealed this decision to the Tribunal, but prior to the Tribunal hearing, the then Secretary of State for Justice, Jack Straw, issued a veto under section 53 of the Act, overruling the Commissioner’s decision (see earlier post). This was, and remains, only the second time the veto has been used.
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