Mr Kennedy (the ‘Appellant’) was a journalist who appealed against a decision that the Charity Commission (the ‘Respondent’) was not legally required, under the Freedom of Information Act 2000 (‘FOIA’), to disclose certain documents. These documents related to three inquiries into the ‘Mariam Appeal’, following Mr Kennedy’s suspicion that charitable funds from the Appeal had been misused.
The Respondent Commission rejected the Appellant’s request for access to the relevant documents because it believed that the information was subject to an absolute exemption from disclosure under section 32(2) of the FOIA, in relation to any documents placed in its custody or created for the purposes of an enquiry.
The appellant had been to the Information Tribunal and won. The Court of Appeal, however, had overturned the decision of the Information Tribunal and held that the absolute exemption applied and dismissed Mr Kennedy’s request.
Before the Supreme Court, the Appellant argued that the exemption ended on conclusion of the enquiry, as opposed to 30 years later, when the material would become a ‘historical record’ (if not destroyed by then).
Alternatively, the Respondent contended that Article 10 of the European Convention on Human Rights (“Everyone has the right to freedom of expression…”) required that the exemption be read ‘down’ with the same effect, in accordance with section 3 of the Human Rights Act 1998.
The Supreme Court held that the absolute exemption under section 32(2) applied, dismissing Mr Kennedy’s request.
As a matter of ordinary statutory construction, it was declared that this exemption from disclosure would last until the relevant information was destroyed, or for up to 30 years, under the Public Records Act 1958.
The Supreme Court held that the more natural interpretation of section 32(2) was that the absolute exemption continued after the end of the relevant inquiry. The words “for the purposes of the inquiry or arbitration” qualified the immediately preceding words in 32(2)(a) and (32)(2)(b) 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 a request for information. This interpretation was strengthened by other sections within the FOIA relating to ‘historical records’. Section 62(1) dictated that a record would become a historical record after 30 years, with section 63(1) outlining that the contents of historical records could not be exempt information under section 32. Consequently, it was inferred that information falling within section 32 would continue to be exempt for 30 years.
The Supreme Court held that the effect of section 32 was to take information falling within the absolute exemption outside the scope of the FOIA disclosure regime. The FOIA was never intended to determine whether or not such information should be disclosed, because section 78 of the FOIA specified that nothing in it was “to be taken to limit the powers of a public authority to disclose information held by it”. Therefore, any such rights should have been located and enforced elsewhere. The majority held that the FOIA was not an exhaustive scheme that governed all requests for information from public authorities, because information could be extracted from public authorities through other means, with statutory or common law powers (for example, general common law duties of openness and transparency on public authorities) for ordering disclosure continuing to apply alongside the Act. Given that the law here put the Applicant in a position which was by no means lesser than that which could be provided under Article 10, there was no reason for section 32 to be read down.
The judgment therefore affirmed that those attempting to access information from a public authority should make requests under both the FOIA and under the common law right to information.
If rejected at this stage, applicants should then consider applying for judicial review, rather than making a complaint to the Information Commission under the FOIA.
The Supreme Court stated that the courts would apply a very high standard of review to matters of disclosure in relation to questions of real public interest here, given the importance of transparency and openness in this area of the law. As Lord Toulson stated, the judicial process should be open to public scrutiny as long as this was not trumped by countervailing considerations.
Although the Supreme Court concluded that the Appellant was not placed in a less favourable position than he would have been if Article 10 had been engaged, they stated that Article 10 imposed no freestanding positive duty of disclosure on public authorities. As it was not necessary on the facts of the immediate case to decide this point for the resolution of the appeal, given that the Appellant already had an effective right to the information outside the FOIA under the Charities Act 1993 and the common law right to information , it was only considered, obiter. Whilst it was neither clear nor easy to conclude whether or not Article 10(1) conferred a positive right to receive information, Lord Mance affirmed that the recent developments in in the European Court of Human Rights’ case law were not sufficient to justify a departure from the principle, clearly established in the series of Grand Chamber decisions, that Article 10 did not impose a freestanding positive general duty of disclosure on public authorities (Roche v United Kingdom, Guerra and others v Italy). Whilst recent case law (Társaság a Szabadsagjogokert v Hungary (2011)) was indicative of a wider interpretation of the Article that encompassed a ‘freedom to receive’, this was held to be weakly based. Further, Lord Toulson was concerned that by extending Article 10 in this way, it would give rise to a new, undefined law that would have thereby been established without the necessary checks and balances that are expected of similar pieces of law.