Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Mixed Outcome
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The European Court of Human Rights (ECtHR) dismissed a right to access information claim brought by the Times Newspaper (Times) on the ground that they had not exhausted domestic remedies. The Times complained that the United Kingdom was in violation of Article 10 of the European Convention on Human Rights because the exemption provided under Section 32(2) of the Freedom of Information Act 2000 (“FOIA”) did not assess whether the denial of access to information was appropriate and necessary. As part of a journalistic investigation into alleged misappropriation of funds by a charitable organization, the applicants followed the FOIA procedure to request documents from the Charity Commission. The Charity Commission initially refused to disclose the requested documents claiming absolute exemption under on 32(2) of the FOIA but eventually released some documents after a protracted legal process. The Times did not seek the alternate path of judicial review to gain access to additional documents finding that the delay would render the information no longer newsworthy and the legal costs would constitute an excessive and disproportionate burden on the right to freedom of expression. After a lengthy review of domestic procedures and European case law, the Court concluded that the common law alternative to seek judicial review under the Charities Act would have provided an effective legal remedy satisfying the requirements of Article 10.
The applicants are Times Newspaper Ltd. and Mr. Dominic Kennedy. Times Newspaper Ltd. is the proprietor and publisher of the Times newspaper and is registered in England. Mr. Dominic Kennedy is an Irish national and a senior investigative journalist employed by the Times.
Article 19, the Campaign for Freedom of Information, the Citizen Network Watchdog Poland, the Media Legal Defence Initiative and the Helsinki Foundation were intervenors in the present case.
The case concerns a series of inquiries made for documents regarding the Mariam Appeal. Mariam Appeal was a fund launched in 1998 by Mr. George Galloway, a Member of Parliament with the objective of providing for treatment of Iraqi children suffering from leukaemia. From 1998 until its closure in 2003, it raised a total amount of 1.5 million pounds sterling.
Mr. Kennedy published an article in the Times alleging misuse of these funds. Thus, the Charity Commission for England and Wales launched an inquiry under Section 8 of the Charities Act 1993 for evaluation of Mariam Appeal’s funds for non-charitable purposes.
A second inquiry was also opened to investigate how the monies were raised throughout the lifetime of the Mariam Appeal. But both the inquiries were closed in March 2004. The statement of results was published on 28 June 2004 setting out its findings. According to the Statement, Mariam Appeal was a charitable organization, despite the fact that its founders failed to register it as a charity being unaware that their activities would be classified as charitable. As no “bad faith” was found, no further actions were taken.
A third inquiry was opened on 9 December 2005 by the Charity Commission as a result of allegations that the Mariam Appeal had received donations from contracts made under the United Nations Oil-For-Food Programme. [para. 6]
The Commission concluded that the donations to Mariam Appeal had come from improper sources but it did not take any action in respect of these donations since it was a civil regulator and did not have powers of criminal prosecution. [para. 6]
The applicants then began a protracted process to gain access to relevant documents for their journalistic investigation into alleged misappropriation of funds by Mariam Appeal. The FOIA process yielded the release of a range of documents but full disclosure would have required judicial review under the Charities Act resulting in unacceptable delays and legal costs. Following is a summary of the steps taken.
With regards to Charity Commission’s inquiry between December 2005 and April 2007, Mr. Kennedy sought information on 8 June 2007 which was refused by the Charity Commission as it held that the information sought contained both qualified and absolute exemptions under the Freedom of Information Act, 2000 (“FOIA”).
It was explained that the exemption was not absolute as under Section 2 of FOIA it has to be considered whether the public interest in withholding the information was outweighed by the public interest in its disclosure. It was concluded that the balance of public interest weighed more strongly in withholding information on the ground that disclosure could negatively impact the Commission’s ability to carry out its functions “efficiently.” However, Mr. Kennedy argued that the exemptions had been misapplied and thus the Commission should reconsider its decision.
2. Complaint to the Information Commissioner
Mr. Kennedy complained under Section 50 of the FOIA about the refusal to disclose information. However, the Commissioner upheld the Charity Commission’s decision to not disclose the information finding an absolute exemption applied and thus there was no need to assess the public interest value of disclosure.
3. The Information Tribunal
Mr. Kennedy then appealed under Section 57 of the FOIA to the Information Tribunal to consider whether the information was exempt from disclosure under Section 32 of the FOIA.
Mr. Kennedy reduced the scope of his request to ensure that it did not impact other protected interests under FOIA and in the interests of proportionality. [para. 15] The classes of documents to which Mr. Kennedy sought access included:
Section 32 of the FOIA states:
(i) a court, or
(ii) a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter
2. Information held by a public authority is exempt information if it is held only by virtue of being contained in-
Charity Commission joined as an interested party. [para. 13]
On 14 June 2009, the Tribunal upheld the decision of the Information Commissioner that Section 32 of the FOIA provided an absolute exemption for the bulk of the requested documents but did order the release of a small subset.
4. The High Court
Mr. Kennedy next appealed to the High Court, which was refused on 19 January 2010 as the Judge preferred the arguments of the Information Commissioner and the Charity Commission. [para. 18]
5. The Court of Appeal
Mr. Kennedy was granted appeal before the Court of Appeal on the ground that the judge had wrongly interpreted section 32(2) and that the section should be read to be compatible with Article 10 of the ECHR. On 12 May 2011, Lord Justice Ward, delivering the opinion of the Court, noted that applying the “conventional principles of statutory interpretation” the Charity Commission’s interpretation of Section 32(2) was to be preferred. The Court did not consider the Article 10 issue as it had not been considered by the previous courts. However, he referred the human rights issue to the Information Tribunal and hence stayed the appeal pending the Tribunal’s decision.
6. Hearing Before the First-tier Tribunal General Regulatory Chamber (Information Rights)
In the interim, the First-tier Tribunal General Regulatory Chamber (Information Rights) assumed the responsibilities of the Information Tribunal. Accordingly, a hearing before the First-tier Tribunal took place in October 2011 where Mr. Kennedy argued that right of access to information could be derived from Article 10 of the Convention and therefore the refusal constituted and interference with his freedom of expression.
On the other hand, The Charity Commission’s position was that Mr. Kennedy did not have any such right to receive information. Similarly, the Information Commissioner argued that that there was no general right to information under Article 10 of the Convention. Similarly, the Secretary of State for Justice submitted that there was no Article 10 right at play and in any event Section 32(2) would not interfere with any such right. [para. 23]
The Tribunal reviewed case law from the European Court to establish that while no general right to access information has been determined, there has been a recognition of a general right for individuals or social watch dogs to access information in the public interest under specified circumstances. Relying on Társaság a Szabadságjogokért v. Hungary, no. 37374/05, 14 April 2009 the Tribunal determined that the refusal “imposed a form of censorship” on Mr. Kennedy in his journalistic role to seek and impart information in the public interest. [para. 25] In view of the above arguments, the Tribunal concluded that the conventional meaning of Section 32(2) of the FOIA constituted an interference with Mr. Kennedy’s Article 10 rights. [para. 26]
The Tribunal assessed whether the interference was justified. It accepted that the objective of the legislation was to protect information lodged with, or created during the course of, the inquiry. However, the absolute exemption provided under section 32(2) did not adequately balance the interests of society and individuals, and therefore it could not be considered “necessary in a democratic society.” Further, Section 32(2) had to be interpreted in a manner consistent with Article 10 by limiting the exemption from disclosure so that it ended upon the termination of the third inquiry in the present case. [para. 26]
7. Restored hearing before the Court of Appeal
The Court of Appeal restored the appeal and delivered it judgment on 20 March 2012. It found that it was bound by a recent Supreme Court ruling Sugar v. British Broadcasting Corporation where the Supreme Court had held that Article 10 did not apply to a request to the British Broadcasting Corporation for the disclosure of a document as it was a public authority. Therefore, the Court declined to analyse whether Article 10 had been engaged. However, in light of the significance of the issue, it granted leave to appeal so the Supreme Court could “consider the precise boundaries of Article 10.” [para. 28]
8. The Supreme Court
Three issues were argued before a panel of 7 judges. These issues were as follows:
The Justices agreed that Mr. Kennedy’s request was of public importance. The court also concluded that Section 32(2) of the FOIA contained an “absolute exemption which continued after the end of an inquiry” until the time it became part of the historical record. [para. 30]
The Court explained that an alternate avenue for disclosure was available to Mr. Kennedy through judicial review based on the Charities Act 1993 which required a certain level of openness and transparency by public authorities. The Charities Act, supported by the common law principle of open justice, put Mr. Kennedy in a no less favourable position regarding disclosure than he would have under Article 10. Hence there was no question of “reading down” Section 32(2) for it to end after the inquiries or finding it to be inconsistent with Article 10. [para. 32]
Lord Wilson and Carnwath dissented and held that Article 10 gave rise to a right of access to information and the exemption under Section 32(2) should end after the inquiries. They observed that the “open justice” principle likely could not be applied to the inquiries and that judicial review could not offer the same “practical effect” that under FOIA or the HRA.
The majority indicated that Article 10 only protected the right to receive information which others wished or were willing to impart. However, it did not give rise to a general right of access to information. Thus, while Article 10 recognised a right in the citizen to request information under domestic law unimpeded by the state, it did not itself create a right of access. The Court relied on several cases for example, Leander v. Sweden, 26 March 1987, Series A no. 116, and Gaskin v. the United Kingdom, 7 July 1989, Series A no. 160, etc.
The minority, on the other hand, considered that Article 10 gave rise to the right to require an unwilling public authority to disclose information. [para. 41]
9. Fresh Request to Charity Commission
Based on the common right of access, as identified by the Supreme Court, Mr. Kennedy submitted a fresh request for information to the Charity Commission on 1 May 2014 claiming that disclosure was required under the open justice principle and the Charity Commission’s responsibilities. In pursuance of this request, 624 documents were disclosed. Based on the information disclosed by the Commission, Mr. Kennedy published two articles.
Mr. Kennedy did not seek further judicial review to gain access to additional documents finding that the delay rendering the information no longer newsworthy and the legal costs “would constitute an excessive and disproportionate burden” on his right to freedom of expression.
10. Complaint before the European Court of Human Rights
Mr. Kennedy and Times Newspapers Ltd filed a complaint with the European Court of Human Rights that the United Kingdom had violated Article 10 of the Convention because the absolute exemption as granted under Section 32(2) of the FOIA did not require an assessment of whether the denial was appropriate and necessary. [para. 80]
Although the complaint focused on the compliance of Article 10 under Section 32(2) of the FOIA, the central issue for determination before the European Court was whether the domestic legislative framework as a whole satisfied the requirements of Article 10 of the Convention. Citing Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 149, 8 November 2016) the Court noted that Article 10 (1) does include a right to access information under certain circumstances but it does not create a general right or a prescribed legislative scheme.
As the Government claimed the applicants failed to exhaust the domestic remedies and that judicial review would have provided an effective remedy, the Court began by reviewing the need to exhaust domestic remedies before bringing complaints to the regional court. The Court observed that its role as an international court is subsidiary to the national systems and therefore, it should not take the role of the Contracting States whose responsibility it is to ensure protection of fundamental rights at a domestic level. [para. 93]
Further, the states are dispensed from answering before an international body for their own acts before they have had an opportunity to put matters through their own legal system. Further, the Court is not a court of first instance and it is not appropriate to its function as an international court, to adjudicate on cases which require the finding of basic facts falling under the domain of domestic jurisdiction. [para. 94]
Moreover, there is an obligation on the applicant to exhaust the domestic remedies. However, there is no obligation to have recourse to remedies which are inadequate or ineffective.
With regards to the burden of proof, it is upon the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one. Once this burden is established, it is upon the applicant to establish that the remedy advanced was in fact exhausted.
Was the alternative remedy, on which the majority of Supreme Court Justices relied, effective?
The Court next observed that for a domestic remedy, such as judicial review in the present case, to be effective, it should be capable of assessing the lawfulness, legitimacy of the aim and proportionality of any interference, and of remedying any breach. [para. 99]
The majority opinion of the Supreme Court found that the common law alternative of judicial review based on the Charity Act would put the applicants in a no-less-favourable position regarding the disclosure than they would have under Article 10. Under that scheme, the Charity Commission would have to show “persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed.” para. 100]
The European Court noted that this position taken by the Supreme Court has been consolidated in practice. This practice can be traced back to the case of R v. City of Westminster Magistrates’ Court where Lord Justice Toulson held that it would be wrong to infer from the exclusion of court documents under the FOIA that Parliament thereby intended to preclude the courts from granting access to them where it would be proper under the open justice principle.
With regards to the proposed remedy of the Charities Act, there were two criticisms by the applicants. First, a person challenging a decision of the Charity Commission not to disclose information would have to apply for judicial review and provide justification for their request, not required under a FOIA request, [para. 105] as well as pay legal fees and costs. Second, proportionality was not recognised as a general principle of English Administrative Law.
The Court observed that the fact that a favourable scheme had been created under the FOIA would not automatically render an application for judicial review “inaccessible” or “ineffective”. [para. 106]
Further Lord Mance of the Supreme Court had clarified that upon receiving a request for information, the Charity Commission would have to balance the interests involved and following an application for judicial review, the Administrative Court would place itself in the position of the Charity Commissioners by ascertaining whether the relevant interests have been balanced properly.
The scrutiny of Administrative Court could be based on Article 10 and the Court would not be precluded from interpreting Article 10 as including, under certain conditions, a right of access to information. [para. 107]
Thus, the European Court concluded that there is no reason to suppose that a request for disclosure under the Charities Act would not in principle satisfy the requirements of Article 10 of the Convention or that judicial review would not provide an effective remedy for any person.
Therefore, the Court found the Charity Act remedy was effective.
Was the applicant required to exhaust this remedy before introducing his application before the European Court?
The European Court stated that the present case was not one where two sufficiently certain remedies existed side by side, with similar objectives and similar prospects of success.
After the Supreme Court decision, Mr. Kennedy did request disclosure from the Charity Commission under the Charities Act. He, therefore availed himself of the alternative remedies relied on by the majority of judges of the Supreme Court. The Commission disclosed 624 documents out of a total of 775. However, despite the Supreme Court having clearly indicated that there was a significant public interest in favour of disclosure of the information sought, Mr. Kennedy did not seek to judicially review the withholding of the documents. [para. 115]
Thus, the Court concluded that had Mr. Kennedy been dissatisfied with the decision he would have had to challenge it before the Information Commissioner and the First Tier Tribunal. However, additional legal costs would have been incurred in any such event.
Further, while the Charity Commission would have raised the issue of delay, any refusal of permission on this ground would have been “harsh”.
Finally, it was contended by the applicants that:
First, judicial review could not have provided them with a remedy for any obstruction they faced in their journalistic activities due to failure to disclose the material to them with while it was still newsworthy. [para. 118]
Second, it would not have enabled them to challenge the Supreme Court’s decision that Section 32(2) operated as a complete ban on their claim and Article 10 did not protect a right of access to information. [para. 118]
In this regard, the European Court observed that at no point in the protracted domestic proceedings did Mr. Kennedy seek any redress before the national courts for the Charity Commission’s failure to disclose the information sooner. The Supreme Court had provided them with an alternate means to request information otherwise exempt under FOIA. They also had received a significant portion of the documents requested and if they still felt the additional documents were necessary, that would have to be assessed by a national administrative court.
With regards to further challenge to Section 32(2), Supreme Court had already directed the applicants to an alternative means of accessing the information.
Finally, the national courts could have interpreted the scope of Article 10 of the Convention consistently with the judgment of the ECtHR in the case of Magyar Helskinki Bizottsag.
Thus, the present application was considered inadmissible as the applicants had failed to exhaust domestic remedies within the meaning of Article 35 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the ECtHR is largely clarificatory in nature. This is because the ECtHR, while considering the application inadmissible due to non-exhaustion of domestic remedies, reaffirmed the alternative remedy of judicial review as observed by the Supreme Court while clarifying the scope of Article 10. The Supreme Court had observed that Charity Commission had the power to disclose information to the public concerning its inquiries in exercise of statutory objectives under the Charities Act, 1993 and the common law duties of openness and transparency incumbent on public authorities. However, the exercise of this power was subject to judicial review. Mr. Kennedy was in a no-less-favourable position regarding disclosure than he would have been under Article 10.
However, the Court did not recognize the extensive procedures already taken by the applicants under the FOIA process to have constituted a burden or to have negatively impacted the journalistic responsibility to provide information in the public interested in a timely manner. Requiring a second round of requests through the process of judicial review would incur additional delays and costs.
The Court also did not take the opportunity to further establish a right to access information under Article 10.
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