Kennedy v Charity Commission

Mr Kennedy (now the Appellant), a Times journalist, appealed against the Court of Appeal’s decision ([2012] EWCA Civ 317) that the Charity Commission (now the Respondent) was not required to disclose under the Freedom of Information Act 2000 documents concerning an inquiry it had conducted into the ‘Mariam Appeal’ launched by Mr George Galloway from 1998 to 2003.

The Charity Commission had refused Mr Kennedy’s request on the ground that the information was subject to the absolute exemption from disclosure contained in section 32(2) of the FOIA in relation to any documents placed in its custody or created by it for the purposes of an inquiry. The Charity Commission argued this exemption continued after the end of the inquiry.

Mr Kennedy argued that (i) the exemption only subsisted for the duration of the relevant inquiry or alternatively (ii) that the European Convention of Human Rights required section 32(2) of the FOIA to be read down to enable such a result as (iii) article 10(1) conferred a positive right to receive information from public authorities and it followed, a correlative obligation on public authorities to impart such information, unless the withholding could be justified under article 10(2).

The case reached the Supreme Court more than six years after Mr Kennedy’s initial request, after detailed consideration by the Information Commissioner, the Information Tribunal (twice), the High Court and the Court of Appeal (twice).

1. Whether section 32(2) of the FOIA contained, as a matter of ordinary statutory construction, an absolute exception which continued after the end of the inquiry.

2. If so, whether this absolute exception was compatible with Mr Kennedy’s rights under article 10 of the ECHR.

3. In the event of incompatibility, should the absolute exception in section 32 be read down under to section 3 of the Human Rights Act 1998, as either (i) ceasing to operate at the end of the inquiry or (ii) being a qualified exception that requires a general balancing of the competing public interests.

4. If it was not possible to interpret section 32(2) in a manner that was compatible with the Convention, whether the Supreme Court should make a declaration of incompatibility.

Dismissing the appeal, by a five to two majority (Lords Wilson and Carnwarth dissenting):

1.    Section 32(2) was intended to provide an absolute exemption which would not cease at the end of inquiry proceedings:

According to the majority, the critical phrase “for the purposes of…” in section 32(2) qualified the immediately preceding words in that section and referred to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. They did not refer to the purpose for which a public authority held the documents at the time of requesting the information. To read section 32(2) in the way argued for by the Appellant would be too far-fetched. Parliament could have stated much more simply that information held by a public authority was exempt information if it was held only for the purposes of an inquiry, and did not do so.

This  interpretation was also more consistent with the scheme of the FOIA generally. Under section 62(1), a record would become a “historical record” at the end of 30 years. Section 63(1) specified that information contained in a historical record could not be exempt information by virtue of section 32. The natural inference, therefore, was that it had been contemplated that information falling within section 32 would continue to be exempt for 30 years.

2.    Section 32 was compatible with article 10 of the ECHR:

In the majority’s view, the effect of section 32 was to take information falling within the absolute exemption outside the scope of the FOIA regime. The FOIA was never intended to determine whether or not such information should be disclosed. Section 78 specified that nothing in the FOIA was to be taken to limit the powers of a public authority to disclose information held by it. Any statutory or common law powers to order disclosure continued to apply alongside the FOIA.

This left open, therefore, the statutory and common law position regarding disclosure outside the FOIA, which directed attention to the Charities Act 1993. If the Charities Act 1993 entitled the Applicant to disclosure or put him in a position no less favourable regarding disclosure than that which could be provided under article 10, then there could be no basis for concluding that section 32 required reading down in light of or was inconsistent with article 10.

Lords Wilson and Carnwath dissented, on the basis that the Applicant had a right to receive the requested information under article 10. The minority endorsed counsel for the Applicant’s submission that the direction of travel of the Strasbourg court was clear (see Issue 3 below). The court should have, in Lord Wilson’s view, confidently concluded that a right to require an unwilling public authority to disclose information could arise under article 10. The jurisprudence of the ECtHR did not betoken some indiscriminate exposure of sensitive information held by public authorities to general scrutiny. It merely provided that in some circumstances article 10 would require disclosure. It was therefore possible under section 3 of the Human Rights Act 1998 to read section 32(2) down so that the absolute exemption lasted only until the end of the relevant inquiry.

According to Lord Wilson, this was more favourable than the other avenues identified by the majority for disclosure outside of the FOIA, which were profoundly unsatisfactory, compared to the “simple specialist and generally cost-free” scheme established under FOIA. Lord Carnwath agreed, stating that the scheme established by the FOIA was intended to be a comprehensive, albeit not necessarily exhaustive, legislative code governing duties of disclosure by the public authorities to which it applied. In deciding whether the FOIA was compatible with the Convention, the Court should have directed its attention to the Act, rather than to the powers or remedies which may be available with other legal sources.

3.    In the event of section 32(2) being incompatible with article 10, s.3 of the Human Rights Act 1998 did not require the provision to be read down:

The point was considered obiter, as it was not necessary, per the majority’s finding, to decide the point for the resolution of the appeal.

The Strasbourg jurisprudence on whether article 10(1) conferred a positive right to receive information was reviewed by Lord Mance ([57]-[100]), who described it as neither clear nor easy to reconcile. A number of Grand Chamber decisions contained clear-cut statements of principles. But these were surrounded by individual Section decisions, which appeared to suggest that at least some members of the Court disagreed with and wished to move on from the Grand Chamber’s statements of principle ( [71] and [76]). It was unfortunate that the relevant sections had not released the matter before them to the Grand Chamber.

Lord Mance rejected the Applicant’s “radical analysis” that a right to receive information could arise under Article 10, without any domestic right to the information. The recent developments in Strasbourg’s case law were not sufficient to justify a departure from the principle clearly established in the series of Grand Chamber decisions that 10 did not impose a freestanding positive general duty of disclosure on public authorities. Although the Second Section referred in Társaság a Szabadsagjogokert v Hungary (2011) 53 EHRR 3 to the European Court of Human Rights having recently advanced towards a broader interpretation of the notion of “freedom to receive information”, this was weakly based, clearly aspirational and tentative and not part of the essential reasoning of the Court’s decision (Lord Mance).

Lord Toulson agreed, holding that an endorsement of the Applicant’s argument would amount to a European freedom of information law established on an undefined basis without the normal checks and balances to be expected in the case of freedom of information legislation introduced by a State after public consultation and debate.

Lords Wilson and Carnwarth, dissenting, agreed with the Appellant’s argument that although the ECtHR’s case law was unsatisfactory, the “direction of travel” was clear.

4.    No declaration of incompatibility was necessary as section 32 was compatible with the Applicant’s article 10 rights. 

This decision is an important ruling for those who wish to seek documents from public bodies. It is clear that the FOIA is not a complete and self-contained system. Individuals seeking documents who either believe that an exemption under the FOIA may apply, or are faced with a refusal based on an exemption, should consider other statutory and/or common law routes to access, if available.

A number of interesting obiter observations were also made:

(i) In relation to alternative avenues, Lord Mance considered that the Charity Commission had the power to disclose the requested information under the Charities Act 2003. The issue in question concerned the principles of accountability and transparency, which were contained in the Charities Act and reinforced by common law consideration. Where, as here, the information was of genuine public interest and requested for important journalistic purposes, the Charity Commission would have to show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed.

(ii) Given the importance of principles of openness and transparency, the courts would apply a very high standard of judicial review to any decision not to disclose information in answer to questions of real public interest raised by a journalist (Lord Mance). Open justice was stressed as a fundamental principle of common law. Letting in the light was the best way of keeping those exercising the judicial power of the state, up to the mark and for maintaining public confidence (Lord Toulson). The usual standard of Wednesbury unreasonabless, therefore, would not apply in such circumstances.

(iii) Since the passing of the Human Rights Act 1998, there had too often been a tendency to see the law in areas touched by the Convention solely in terms of the Convention rights. In the field of freedom of speech, there was no difference in principle between English law and article 10. In some areas, the common law might even go further than the Convention and in some cases, be inspired by it (the protection of privacy being a notable example). The natural starting point in any dispute, therefore, was the common law. Such comments, though obiter, will be of use to those pleading article 10 points in the domestic courts.

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