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Off the record: Supreme Court sides with Charity Commission in FOIA appeal

Ben Gaston

Anna Bonini

27 March 2014
The Supreme Court has ruled that the absolute exemption contained in s.32(2) of the Freedom of Information Act 2000 ("FOIA") continues to apply to information obtained or created by a person conducting an inquiry even after the termination of that inquiry.  The decision was not without dissent, however, with the minority of the Court considering that interpretation to amount to a disproportionate interference with the appellant's Article 10 rights.

Background

Between 2003 and 2005, the Charity Commission conducted three inquiries in relation to the "Mariam Appeal", an appeal launched by George Galloway MP in 1998 in response to sanctions imposed on Iraq following the first Gulf War. Following two brief reports issued as a result of these inquiries, Dominic Kennedy, a journalist with The Times, made a request to the Charity Commission seeking disclosure of connected documentation under FOIA.

The Charity Commission refused Mr Kennedy's request, pointing to s.32(2) FOIA, which sets out an absolute exemption for information held by a public authority only by virtue of being contained in any document obtained or created by a person "conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration". On 20 March 2012, the Court of Appeal, overturning the First-Tier Tribunal, endorsed the Charity Commission's refusal.

The Supreme Court, by a majority of five to two, yesterday dismissed Mr Kennedy's appeal in Kennedy v The Charity Commission [2014] UKSC 20.

Effect of the s.32(2) exemption

Counsel for Mr Kennedy argued that the s.32(2) exemption applies only until the end of the relevant inquiry. The Supreme Court disagreed, holding that, as a matter of ordinary statutory construction, the absolute exemption under s.32(2) FOIA lasts until the relevant information is destroyed or, if it is not destroyed, when the document becomes a "historical record" for the purposes of the Public Records Act 1958.

The effect of s.32(2) FOIA is not, however, to exclude any duty of disclosure. Rather, according to the majority, this absolute exemption merely means that the relevant documents fall outside the scope of FOIA, and any questions as to their disclosure fall to be addressed "under different and more specific schemes and mechanisms". In this case, in Lord Mance's opinion, the statutory duties set out in the Charities Act 1993 and the general common law duties of public authorities gave the Charity Commission the power to disclose information to the public concerning inquiries it has conducted. FOIA in no way limits such a power: s.78 provides that "[n]othing in this Act is to be taken to limit the power of a public authority to disclose information held by it".

On this basis, Mr Kennedy, who had only ever pursued his claim for disclosure by reference to FOIA, could also have requested the material at common law and then sought judicial review of any refusal by the Charity Commission to provide it. In the circumstances, any such decision would be subject to a very high standard of review: according to Lord Mance, "the proper functioning and regulation of charities is a matter of great public importance and legitimate interest" and the Charity Commission should therefore accede to requests for disclosure such as Mr Kennedy's "except so far as the public interest in disclosure is demonstrably outweighed by any countervailing arguments that may be advanced". Lord Toulson reached a similar conclusion on the basis that "[t]he considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi-judicial hearings".

Article 10 of the European Convention on Human Rights

Mr Kennedy also argued that the s.32(2) exemption was incompatible with his rights under Article 10 of the European Convention on Human Rights (the "ECHR"). The majority held that, even if Article 10 were applicable, there would be no reason to regard FOIA in isolation as the only "route by which the United Kingdom has chosen to give effect to any rights to receive information which Mr Kennedy may have". On the contrary, the Charities Act 1993 and the common law should be considered and, in the circumstances, put Mr Kennedy in no less favourable a position than if Article 10 were engaged.

Having discussed the conflicting jurisprudence of the European Court of Human Rights (the "ECtHR"), the Court rejected Mr Kennedy's submission, based on recent ECtHR decisions such as Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung, that Article 10 should be regarded as conferring "a positive right to receive information from public authorities and […] a correlative obligation on public authorities to impart information", the majority holding that Article 10 imposes no such free-standing duty of disclosure on public authorities. The recent developments in ECtHR case law were insufficient to justify a departure from the well-established interpretation of that article.

Lord Wilson and Lord Carnwath, in minority judgments, disagreed, considering that Article 10 did provide Mr Kennedy with a free-standing right to receive the requested information and that the absolute exemption in s.32(2) FOIA violated this right. As a result, s.32(2) FOIA should be "read down" under s.3 of the Human Rights Act 1998 so as to imply an exemption which expires at the end of the relevant inquiry, which would be compatible with Mr Kennedy's Article 10 rights. According to Lord Carnwath, this approach would preserve FOIA as the mechanism for obtaining information from public authorities, which would be in many respects more convenient than the judicial review procedure envisaged by the majority.

Comment

Two main points of interest arise from the Supreme Court's decision. First, the majority gave a clear indication that it does not (yet) regard the recent developments in Strasbourg jurisprudence on Article 10 ECHR as sufficient to establish a free-standing duty of disclosure for public authorities where no such duty exists in domestic law. Second, the Court's reading of s.32(2) FOIA implies that even if Article 10 were to confer a right to receive information from public authorities, it would not be sufficient for an applicant to claim that an exemption set out in FOIA violates this right – in each case, the statutory and common law regime for disclosure outside FOIA should also be taken into account in assessing compliance with Article 10 ECHR.

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