The National Archives The Duchy of Cornwall and Freedom of Information Act 2000

The experience of one researcher Introduction I am a post graduate student at the University of Plymouth who has just submitted a thesis for consideration entitled “The Duchy of Cornwall – A Feudal Remnant?” As part of my investigations I spent a great deal of time exploring The National Archives (TNA) records maintained at Kew. I came across a closed file “IR 40/16619 – Liability of the Duchy of Cornwall to tax: covering dates 196062”. The tax status of the Duchy of Cornwall was one focus on my research so I requested under the Freedom of Information Act 2000 (FOIA) that the file be opened. The Initial Request I sent my request for the closed file to be opened on 16th February 2010. TNA advised me on 30th March 2010 that the file was exempt from disclosure under FOIA sections 40(2) (personal data) and 41 (information provided in confidence). I asked on 10th April 2010 for an internal review and received a response on 19th August 2010 in which the original decision was confirmed. FOIA section 10 provides a reply should be sent by the public authority within 20 working days. It will be observed that the TNA replies exceeded the statutory provisions. I would note that I have made a large number of requests to various public authorities in connection with my thesis and, with the exception of Her Majesties Revenues and Customs (HMRC), in no case have I received a response within the statutorily prescribed limits. I complained to the Information Commissioner (ICO) on 4th September 2010 about the way my request had been handled. Eleven months later, on 26th July

2011, and 17 months after my initial request, I received a Decision Notice (FS50348825) from the ICO upholding the original decision by TNA. It is my experience that the delays in the ICO considering complaints are not untypical. In fact in this matter the ICO responded rather more quickly than in other matters with which I am concerned. I decided to appeal to the First Tier Tribunal (Information Rights) (FTT). The First Tier Tribunal (Information Rights) John Kirkhope v Information Commissioner and National Archives

(EA/2011/0185) Before continuing I should, at this point, explain two things. First I was concerned to appeal the case because, as a lawyer, I was curious to know the process and procedures. I regarded it as something of an academic exercise. Next I recognised that if I succeeded in opening the file I may ether decide it was not interesting or while it was interesting it did not add to my thesis. I had no way of knowing since I had not seen the file. I quickly discovered my relatively relaxed attitude was naïve. I submitted the basis of my appeal against the ICO Decision to the FTT. The ICO responded and I made additional observations in reply to the ICO. At this stage TNA applied to join the case which application was accepted by the Tribunal. There then ensued considerable and delays while the Duchy of Cornwall decided whether they also wished to join in the matter. At one point I was informed a decision could not be made because the Prince of Wales was out of the country and he needed to be consulted. In the event the Duchy concluded they would not proceed with their application. Witness statements were exchanged. The witnesses for the other side included three people holding knighthoods including the Chief Executive of the Duchy, a former Permanent Secretary at the Treasury and a previous Principal Private Secretary to the Queen and the Prince of Wales. In addition two senior civil servants from the TNA and HMRC were to give evidence. I was fortunate in that a barrister whom I had previously assisted agreed to act for me on a “pro bono” basis.

Various communications were passed between the parties relating to procedural and other matters. A considerable amount of papers submitted to the FTT was “closed”. That is I was not allowed sight of the material because it would reveal details of the documents I was not permitted to see. The case was finally set down for hearing on 7/8 February 2012 almost exactly 2 years since my original application to TNA. Space does not permit a detailed consideration of the hearing. Suffice to say I arrived at court with my Legal Executive and Counsel to find the Court allocated could barely cope with the various people who were in attendance for the other side. TNA was represented by a QC who is also First Treasury Counsel, he was, of course supported by a junior counsel. The ICO was represented by their counsel. The instructing solicitors were also in attendance as were the five witnesses. In addition, as I discovered later, various senior civil servants from the Cabinet Office came along to observe. There were a number of other people whose identities I did not discover until later. In total, excluding the Judges, there 22 people in the Court Room of whom 3 only were from my side. The seriousness with which the matter was being taken was brought home to me. For a little more than a third of the two days my team was excluded from the Court as it went into closed session to consider the documents in detail. There were various legal arguments which took longer than anticipated and it was decided that a matter before the Court of Appeal had relevance to the case. The court decided that another day at least would be required and the matter was adjourned. A further date was eventually agreed for 23rd May 2012. The hearing in May started with legal arguments which included, extraordinarily, a consideration of the Bill of Rights 1688 and Contempt of Parliament. These lasted for some two hours. After that the three sides summarised their positions. The Judge concluded by saying that usually the Court sought to make a judgement within 3 weeks this case would take much longer to decide. After the hearing had concluded I was told that the QC, being First Treasury Counsel, would be more often found in the Court of Appeal representing the Government not in the lowly First Tier Tribunal. It was explained to me that a gentleman who sat through all three days in Court was, in fact, a representative of

the Queen’s solicitors. I was informed that the Cabinet Office took the matter seriously as evidenced by the resources they had devoted to it. It had caused some annoyance. Finally I was asked if I had considered the expenditure on the proceedings. I can only speculate at the total cost of senior lawyers spending three days in court never mind the cost of senior Civil Servants spending a similar time without even taking account of the costs of preparation of the case. Conclusion At every stage in my research in to the Duchy of Cornwall I have found there to be a reluctance to provide information or to allow the Duchy to be opened to public scrutiny. The case has convinced me that if the “establishment” decide they will resist a request they will devote resources which the “ordinary” citizen cannot match. It has been made clear that should I win the case, and I don’t expect to, the other side will appeal and the question would then arise how much more time and energy I can devote to the issue for a file which it ever is revealed may be of no interest to me at all.

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