Freedom Of Information Act Not To Apply To Prince of Wales Letters To Government

The Attorney General has ruled that correspondence sent by HRH The Prince Of Wales to government departments in the mid-00’s will not be released to the Guardian despite its requests under the Freedom of Information Act. What lessons can busniesses draw from this public row over allegedly private correspondence?

The argument over the letters arises partly as a result of where they were sent and partly because of who sent them. The disclosure request was made to the government departments concerned and not to the Prince whose letters they were.

Private businesses sending information such as tenders to public bodies should be aware that information in the hands of a public body (a classification recently applied to HRH himself in the guise of the Duchy of Cornwall in relation to the FOIA’s close cousin the Environmental Information Regulations) the information might be disclosed to other parties which could include representatives of rival organisations.

It is important to bear in mind that the motives for making a request under the FOIA are almost never relevant to whether or not the information requested should be disclosed. How the requester plans to use the information is not usually significant and it can be hard to argue there is no public interest in the disclosure of information when at least one of the public has asked for it.

There are limited exemptions to the rule in favour of disclosure and while one of them is commercial confidentiality that is not a cure-all to keep any business or contract-related information under wraps forever. The Prince’s letters are being withheld because disclosure would be detrimental to the free discussion of policy which is necessary for the future monarch to prepare for that role, according to the Attorney-General. Not many busniesses would be able to get that kind of defence into place.

Unsurprisingly the Guardian takes the other view and says the letters represent one public body lobbying another with a view to changing policy and should be available. It reportedly plans to mount a legal challenge to the decision.

Businesses sending infomation to public bodies (whether as tenders, planning applications or responses to policies) should be aware of how the FOIA and the EIR might apply with the result that comments or information could be disclosed and come into the public domain. For advice and assistance on the application of the FOIA and other infomation law contact the Business Law team at Forbes.

Daniel Milnes

About Daniel Milnes

Dan is a Partner and Head of Contracts & Projects. Dan’s blogs cover the areas in which his specialities lie in commercial, regulatory and governance law which cover a broad range of matters dealing with contracts, projects, corporate and group structures, funding and compliance with a range of legal regimes including data protection. This also involves writing and advising on various forms of commercial contracts including joint ventures, development and construction agreements and intellectual property contracts including IT agreements, sponsorships and other rights licensing arrangements.
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