In April 2005, E (a journalist with The Guardian newspaper) sought letters and memos written by HRH Prince Charles to government ministers under both the Freedom of Information Act 2000 (“FOIA”) and, insofar as they concerned ‘environmental information’, the Environmental Information Regulations 2004 (“EIR”). The Prince’s dense hand-writing led to the information sought being described in the media as the “Black Spider” letters/memos. Disclosure was refused by various government departments, applying various exemptions. The Information Commissioner upheld those exemptions.
On E’s appeal to the Information Tribunal (as it then was) the matter was transferred to the Upper Tribunal (Walker J, UT Judge Angel, Ms Cosgrove) (“the UT”) for a trial lasting six days. The UT’s reasoned determination of 18 September 2012 allowed E’s appeal in respect of ‘advocacy correspondence’:  UKUT 313 (AAC). The government departments did not appeal this decision to the Court of Appeal.
Section 53 FOIA provides that a cabinet minister or HM Attorney General (“AG”) may issue a signed certificate within 20 days which, certifying that the signatory believes that on reasonable grounds (s)he has formed the opinion that there was no failure by the government department(s) to comply with their duties under section 1 FOIA. By Regulation 18(6) of the EIR, s.53 FOIA applies to requests for ‘environmental information’ sought under the EIR.
Because the ‘advocacy letters’ were contained within papers of a former government, the appropriate signatory was the AG, who issued a certificate (within 20 days) on 16 October 2012 setting out his reasoning for disagreeing with the UT.
E sought judicial review of the AG’s certificate on the basis that (1) the reasons given were not “reasonable grounds” in the meaning of s.53(2) FOIA; and (2) insofar as the ‘advocacy correspondence’ contained ‘environmental information’, the certificate was invalid because Regulation 18(6) was incompatible with Council Directive 2003/4/EC and/or Article 47 of the EU Charter of Fundamental Rights.
The Divisional Court (Lord Judge CJ, Davis LJ and Globe J) dismissed E’s application for judicial review  EWHC 1960 (Admin), but the Court of Appeal (Lord Dyson MR, Richards and Pitchford LJJ) allowed E’s appeal against that decision on both grounds. Lord Dyson MR gave the AG permission to appeal to the UK Supreme Court (“unusually but rightly” according to Lord Neuberger at ).
Although the Information Commissioner, UT, and AG had seen the letters and memos themselves, the Divisional Court, Court of Appeal, and Supreme Court all came to their decisions without having sight of the underlying information that E sought to be disclosed by the government departments.