In Kennedy v IC and Charity Commission [2011] EWCA Civ 367, the Court of Appeal has referred back to the Information Tribunal the issue of whether s.32(2) FOIA should be “read down” (i.e. in favour of requesters) to give effect to Article 10 of the ECHR.

Ward LJ’s judgment begins like this:

“Mr George Galloway attracts attention”.

It goes on to explain that, between 1998 and 2003, Mr Galloway launched and ran the “Mariam Appeal”. This aimed to provide medical assistance in Iraq. It raised funds of nearly £1.5 million. The sources of and uses to which these funds were put generated some controversy. Investigations into the Mariam Appeal by the appellant journalist gave rise to an inquiry by the Charity Commission, which concluded in 2007. Shortly afterwards, the appellant requested information about this inquiry.

The Charity Commission refused, relying on the absolute exemption at s. 32(2) FOIA, which provides as follows (note its punctuation and structure – in particular how the commas and the use of “or” affects the flow and meaning of the section):

 Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b)any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

The Information Commissioner, Tribunal and High Court were broadly in agreement with the Charity Commission’s stance. The issue for the Court of Appeal was whether this exemption subsists only for the duration of the inquiry or whether it continues after the inquiry has concluded. In particular, the “troublesome issue” was whether the phrase “for the purposes of the inquiry or arbitration” relates to and qualifies (i) the reason for placing the document in the custody of the person, or (ii) the reason why the document is being held by the public authority. The latter construction favoured the Appellant’s case, but the Information Tribunal opted for the former construction.

Ward LJ held that the issue was “at least ambiguous if not in favour of the appellant. The grammar certainly does not provide a clear cut answer”. He therefore took a purposive approach. Here a number of factors militated against the construction for which the appellant argued:

  • It would produce a surprising discontinuity with s. 32(1) (the “court records” exemption).
  • It would render otiose s. 63(1) (which nullifies s. 32 once a document reaches the age 30 years).
  • S. 18(3) of the Inquiries Act 2005 could only be construed as amending s. 32(2) – otherwise there would have been no need to pass s. 18(3), which provides that

 “Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a public authority.”

Ward LJ concluded that he could not “extract a clear and certain meaning” of s. 32(2). It was “at least susceptible” to the appellant’s construction, but on the ordinary principles of construction the appeal would have been dismissed.

At a late stage, however (in fact, once the parties had received the draft of the original judgment dismissing the appeal) the appellant contended that – given the finding of ambiguity – s. 32(2) had to be read so as to comply with Article 10 of the ECHR. The Court of Appeal decided that this was an important point, which the present case was ideally suited to answer. On this issue, therefore, the case is being remitted to the Information Tribunal.

Robin Hopkins