Case Summary and Outcome

The U.K. Supreme Court held that although information created for the purposes of an inquiry may be treated as absolutely exempt under the Freedom of Information Act (FOIA), the common law and other statutes may nonetheless require such information to be disclosed. The Applicant journalist had applied for disclosure of information relating to a Charity Commission inquiry into an Appeal founded by a Member of Parliament to provide aid to Iraq during sanctions. The Court reasoned that the words used for the exemption were such to remove the requested information from the FOIA disclosure regime and that any question as to whether such information should be disclosed would be governed by other rules of statute and common law. However, the Court emphasized that principles of transparency and openness were an important part of the common law and courts would apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest. Similarly, it said, open justice is also a fundamental principle of common law and judicial, and quasi-judicial, processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy.

This case analysis was contributed by Right2Info.org.

Facts

The Applicant, a journalist for the Times, made a request to the Charity Commission under the FOIA Act 2000 for disclosure of information it had acquired within the scope of an inquiry conducted in connection with MP George Galloway’s “Mariam Appeal”, which was founded to provide aid to Iraq during the time of sanctions.

The request was refused by the Charity Commission on the ground that the information was subject to an absolute exemption from disclosure contained in section 32(2) of the FOIA, which states that information held by a public authority is exempt information if it is contained in any document placed in the custody of, or created by, “a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration”. The Court of Appeal upheld the Charity Commission’s refusal and the Applicant appealed to the Supreme Court raising several issues including: whether section 32(2) of the FOIA contains, as a matter of ordinary statutory construction, an absolute exemption which continues after the end of an inquiry; and (b) if it does contain such an absolute exemption, whether that is compatible with Mr Kennedy’s rights under Article 10 of the European Convention on Human Rights (ECHR).

Decision Overview

The Court dismissed the appeal, by a five to two majority.

It held that as a matter of ordinary statutory construction, section 32(2) of the FOIA imposes an absolute exemption from disclosure that lasts until the relevant information is destroyed or for up to 30 (or in future, 20) years under the Public Records Act 1958.  The natural interpretation of section 32(2) is that the absolute exemption continues after the end of the relevant inquiry. The words “for the purposes of the inquiry or arbitration” refer 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 do not refer to the purpose for which a public authority holds the documents at the time of a request for information.

It elaborated that the effect of section 32 was to take information falling within the absolute exemption outside the scope of the FOIA disclosure regime and that any question as to whether such information should be disclosed would be governed by other rules of statute and common law. Therefore, the Court said, if the law otherwise entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which could be provided under Article 10, there can be no basis for concluding that it is inconsistent with Article 10.

In Lord Mance’s opinion, the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act of increasing public trust in charities, and under general common law duties of openness and transparency on public authorities. The exercise of that power will be subject to judicial review. Given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports.

Similarly, Lord Toulson’s stated his opinion that open justice is a fundamental principle of common law. He said that judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy. These underlying considerations, he said, also apply to any quasi-judicial inquiries and hearings, such as an inquiry conducted by the Charity Commission, though the application of such principles will vary according to context. In conducting any judicial review of a decision not to disclose information, the High Court should exercise its own judgment on whether the open justice principle requires disclosure.

Lord Wilson and Lord Carnwath dissented and would have allowed the appeal on the basis that Mr Kennedy had a right to receive the requested information under Article 10 of the Convention. They said they would read section 32(2) such that the absolute exemption expired at the end of the relevant inquiry.