Moss: Article 10 ECHR is irrelevant to FOIA

September 3rd, 2020

The free expression right conferred by Article 10 ECHR encompasses a right “to receive and impart information and ideas without interference by public authority”. Does this create a right to request information from a public authority, such that a refusal to disclose would constitute an interference with Article 10?

Answer from the ECtHR: yes, it can do, depending on the circumstances (role of the applicant, purpose of the request, nature and ready availability of the requested information). See Magyar Helsinki Bizottság v Hungary [2016] ECHR 975. Domestic courts in the UK have been less keen, and have rejected the idea that Article 10 ECHR constitutes some sort of European-wide freedom of information law. See the BBC v Sugar (No. 2) and Kennedy v Charity Commission line of cases. So where does this apparent difference in view between Strasbourg and our domestic courts leave disputes about requests for information, including under FOIA 2000?

The Upper Tribunal has now resolved this point, in Moss v Information Commissioner and the Cabinet Office [2020] UKUT 242 (AAC). The answer is that Article 10 ECHR does not create a right in domestic law to request information from a public authority. Nor does it have any bearing on FOIA, i.e. you can’t invoke Article 10 in FOIA disputes so as to achieve a more helpful outcome than you would otherwise get by applying the words of that statute. The UT concluded that it was bound by conclusions to that effect in the Supreme Court’s judgment in Kennedy which, while strictly obiter, were sufficiently clear and were consistent with the Court of Appeal’s judgment in Kennedy and the Supreme Court’s judgment in Sugar (No. 2).

The UT held that even if Article 10 did apply to FOIA disputes, there was no basis for reading down the section 12 cost limit so as to make it a less rigid ground for refusing to impart requested information. Article 10 rights would not necessarily need to be facilitated via FOIA (see Kennedy in the Supreme Court), and Parliament had been clear in its intentions for section 12.

So, for now at least (and perhaps for good), Moss has put to bed the question of whether Article 10 rights have any bearing on FOIA disputes.

Moss is also important on the subject of the cost limit provision under section 12 FOIA. Specifically, it addressed the extent to which, under regulation 5 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, a public authority can aggregate the costs of multiple requests. For example, if a requester makes multiple requests that “relate, to any extent, to the same or similar information” (regulation 5(2)(a)), you can base your refusal on the aggregated cost of complying with those requests.

Fine, argued Mr Moss, but you can’t aggregate simply on the basis that there is a “common theme” linking the requests. “Common theme” was the language used by the FTT in Mr Moss’ case to uphold an aggregation-based section 12 refusal. No problem with that, said the UT: the FTT wasn’t concocting some sort of new gloss on the statutory test, and “common theme” can be an apt paraphrase given the very wide language – “to any extent” – employed in regulation 5(2)(a).

The Information Commissioner was represented by Rupert Paines, and the Cabinet Office by Tim Pitt-Payne QC and Chris Knight.

Robin Hopkins

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