The Curious Tale of the Black Spider Memos
DOI | 10.3366/elr.2015.0252 |
Pages | 101-106 |
Published date | 01 January 2015 |
Author | Hayley J Hooper |
Date | 01 January 2015 |
In
Ibid para 18.
FOIA s 53(2).
Since 19 January 2011, the information requested by Evans has fallen under an “absolute exemption” under section 37(1) of the FOIA
As amended by the Constitutional Reform and Governance Act 2010 sch 7 para 3.
which prevents disclosure of all information relating to communications with the heir to the throne. At the time of the original request, however, the information was the subject of a “qualified exemption”. This means that the information can only be withheld if the public authority holding it concludes that “in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information”.FOIA s 2(1)(b).
Environmental Information Regulations 2004 SI 3391/2004 and Council Directive 2003/4 OJ 2003 L 41/26.
2004 Regulations rule 12(1)(b).
The relevant government departments initially refused Mr Evans' requests for disclosure of the information and their decisions were confirmed by the Information Commissioner.
Information Commissioner's Office, reference FS50425063, available at
On appeal to the Court of Appeal, the certification power was described as a “constitutional aberration” by the Lord Chief Justice because it allows the executive to reverse a judicial decision in a manner clearly at odds with the doctrine of the separation of powers. That constitutional aberration remains notwithstanding the decision, since it was clearly the intention of Parliament that ministers should have such a power. However, the case remains significant as it clarifies and raises the threshold for “reasonable grounds” for disagreement with a judicial decision; and, in respect of the environmental information, it demonstrates the strength of judicial protection of rights available under the EU Charter of Fundamental Rights. By raising the threshold for reasonable grounds, the Court of Appeal's decision will have wider implications across UK freedom of information law. It may also prove persuasive should a similar dispute arise in the...
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