FOIA’s not all that: Kennedy v The Charity Commission [2014] UKSC 20


The Supreme Court’s much anticipated judgments in Kennedy v The Charity Commission make for a long read. But they are very important. All the parties in Kennedy were represented by Counsel from 11KBW: Andrew Sharland for Mr Kennedy; Karen Steyn and Rachel Kamm for the Charity Commission and the Secretary of State; Ben Hooper for the ICO; and Christopher Knight for the Media Legal Defence Initiative and Campaign for Freedom of Information.

The factual background is described in previous posts. In short the appeal concerned a FOIA request made by Mr Kennedy, a journalist at The Times, in June 2007, for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the ‘Mariam Appeal’, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. The Charity Commission relied on section 32(2) of FOIA in refusing the request. That provides an absolute exemption from disclosure where information held by a public authority is held only by virtue of being contained in either (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 Court of Appeal had held that this exemption applied to a request made in 2007 concerning inquiries which had finished in 2005.

The two primary questions for the Supreme Court were (1) whether the absolute exemption in section 32(2) continued after the end of an inquiry (so that Mr Kennedy was precluded from receiving the information); and (2) if so, what, if any difference Mr Kennedy’s rights under article 10 of the European Convention on Human Rights (the “ECHR”) made to that result. In the result the Court’s discussion ranged more widely than may have been anticipated.

The majority of the Court agreed with the judgments of Lord Mance and Lord Toulson. (Lord Sumption gave a separate, concurring, judgment). The majority decided as follows.

(1) Section 32(2) continues to apply after the end of an inquiry

The Court held that the absolute exemption in section 32(2) FOIA does last beyond the end of an inquiry until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958. There were two principal reasons. First, that construction was supported by the words of the section themselves read as a whole. 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. Secondly, the Court considered that its interpretation sat comfortably within FOIA as a whole.  Under section 62(1) FOIA, a record becomes a “historical record” at the end of 30 years, and, under section 63(1), information contained in a historical record cannot be exempt information because of section 32. Lords Mance and Toulson considered that, in that context, information falling within section 32 would continue to be exempt for 30 years instead of ceasing to be exempt at the end of an inquiry. That meant that, absent Mr Kennedy’s being able to demonstrate that Article 10 required a different result, he would not be entitled to the information he sought under FOIA itself.

(2) Article 10 ECHR did not lead to a different construction of section 32(2)

Mr Kennedy argued that if (as the Court held, above) he was not entitled to the information because of s.32(2), section 32(2) was incompatible with his rights under Article 10 ECHR, and that it should be ‘read down’ under the HRA (at the very least so as to mean that s.32(2) ceased to be an absolute exemption after the end of an inquiry).

There were two bases on which the Court decided that Article 10 did not, however, assist him.

The first was that there was no basis for concluding that section 32(2) was inconsistent with Article 10 in circumstances where s.32(2) put him in no less favourable a position than he was otherwise in under general statute and common law to access the information. That was because FOIA is not the only means through which information can be accessed. What section 32(2) of FOIA does is to take information falling within the absolute exemption outside the scope of that particular disclosure regime; but this does not mean that the information subject to the exemption could not otherwise be required to be disclosed by law.  Other statute, or the common law, might require disclosure, even though FOIA did not. According to the majority it could not be said that section 32(2) of FOIA was incompatible with the ECHR in those circumstances.

This is, plainly, a point of wider significance. It may be that the extent to which Article 10 may lack application because of the existence of equivalent rights of access under other statute or common law is likely to depend on the circumstances.

Both Lord Mance and Lord Toulson discussed rights of access to information in the specific context of Mr Kennedy’s request. In Lord Mance’s opinion, the Charity Commission had 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 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. Lord Toulson placed greater emphasis on the fundamental principle of open justice forming part of the common law:

‘It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons. This is the open justice principle. The reasons for it have been stated on many occasions. Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence’ (paragraph 110)

The exercise of the power of disclosure pursuant to the open justice principle would be subject to judicial review. Lord Mance considered that the courts should apply a 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 (see e.g. paragraph 56).

The second reason why Mr Kennedy was not assisted by Article 10 according to the majority was that article 10 was not engaged because it does not impose a freestanding positive general duty of disclosure on public authorities. There is a particularly detailed discussion of the recent developments in the case law of the European Court of Human Rights in the judgment of Lord Mance at paragraphs 57-100, which starts with the statement that the jurisprudence ‘is neither clear nor easy to reconcile’. Technically, the discussion is obiter, because, on the majority’s approach, it was unnecessary to decide the point for the resolution of the appeal. But it will remain, on the present state of the Strasbourg case law, difficult or impossible for requesters to rely on Article 10 as a means of arguing for a more favourable construction of FOIA.

Mr Kennedy’s appeal was, accordingly dismissed. His request under FOIA was properly refused in reliance on s.32(2) and Article 10 did not assist him.

Lord Wilson and Lord Carnwath, dissenting, would have allowed the appeal on the basis that Article 10 was engaged by Mr Kennedy’s FOIA request and should have led to s.32(2) being read down such that the absolute exemption expired at the end of the relevant inquiry.

My own view is that the greatest significance of Kennedy is its highlighting of the fact that FOIA is only one means of obtaining information from public authorities. If a different statutory or common law basis may be found for invoking a right in particular circumstances, a judicial review application may also be available. Whether that is a wise route for requesters to pursue, including given the costs implications of that form of litigation which do not apply in the same way in the tribunal, is a different question, but it is one to which fresh consideration might now be given in appropriate cases.