Article 10 of the European Convention on Human Rights – the right to freedom of expression – has begun to make its presence felt in FOIA and EIR case law. For example, I have recently reported on Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052), in which Article 10 was raised in the context of exceptions under the EIR, but was held not to make a difference. In particular, the First-Tier Tribunal in that case took the view that there was as yet no clear and consistent Strasbourg jurisprudence supporting Mr Sinclair’s reliance upon Article 10.

A differently constituted First-Tier Tribunal (FTT) has taken the opposite view. Readers may recall the unusual twist to the Court of Appeal’s decision of May this year in Kennedy v IC and Charity Commission [2011] EWCA Civ 367: Mr Kennedy requested information concerning the Charity Commission’s inquiry into the Mariam Appeal (founder: George Galloway). The CC refused, relying on the absolute exemption at s. 32(2) FOIA, which applies to documents created or held for the purposes of an inquiry or investigation. The crucial question of construction was this: does the exemption apply to past/closed investigations, or only to current/live ones? The Court of Appeal favoured the former, broader interpretation on conventional construction grounds, but was then persuaded that, given the ambiguity of the statutory language, Article 10 ECHR may have a bearing. It stayed the Court of Appeal proceedings and remitted the following question to the FTT for determination:

“Whether s.  32(2) of FOIA should in the circumstances be read down pursuant to s. 3 of the Human Rights Act 1998 and Article 10 of the ECHR, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.”

Although it admitted to finding this a “daunting task”, involving “extremely complex analysis of human rights law more suited to higher courts”, the FTT has answered yes to the above question. This is not an FTT decision in the usual sense. Rather, the FTT’s recent determination in Kennedy v Charity Commission (EA/2008/008) is a (perhaps) unprecedented legal specimen, namely a “report to the Court of Appeal”.

The FTT began its report by noting the case law on the importance of the media in a modern democracy.

It then considered the crucial issue of whether Article created a general right to receive information from public authorities. The task for a domestic court (see Ambrose v Harris of 2011, per Lord Hope) is to “identify “as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on the issue.”

By way of simplified synopsis of the FTT’s survey of Strasbourg jurisprudence on whether Article 10 creates a general right of access to receive information: a number of Strasbourg authorities – Leander v Sweden, Gaskin v UK, Guerra v Italy, Roche v UK – have said no. In other more recent cases – Társaság v Hungary, Kenedi v Hungary – the court appears to have said yes. In the FTT’s view, recent Court of Appeal decisions in the UK – A v Independent News & Media, BBC v Sugar (No 2) – suggest that the latter has crystallised into a new Strasbourg stance, and the recent Divisional Court decision in R(Guardian News & Media) v City of Westminster Magistrates’ Court did not cast doubt on that general drift.

The FTT summed up its conclusions thus:

“As best we can the FTT considers that this developing jurisprudence is not necessarily granting a general right to receive information under Article 10. Such a general right of access still only exists as set out under Leander. It has advanced, however, towards a broader interpretation of the notion of freedom of information which has recognised an individual right of access conferred by Article 10(1) but which is subject to certain “formalities, conditions, restrictions or penalties” described in Article 10(2). This may be where a social watchdog is involved and there is a genuine public interest as in Társaság or where historical research is being hindered on a matter of public importance as in Kenedi. It appears to us that this extension of scope of Article 10(1) is now being consistently applied and recognised by a number of chambers of the ECtHR. Our Court of Appeal has also recognised this as a clear development. In our view this has not led to a general right to receive information as that would be going too far. However it is now clear that the ECtHR has developed a wider approach from that first established in 1978 to the notion of “freedom to receive information”. There is now recognition of an individual right of access to information in certain circumstances.”

The FTT did not decide whether or not a prerequisite for Article 10 is the public authority’s having a “monopoly” over that information – the CC had such a monopoly in these circumstances in any event.

As Mr Kennedy represented a “social watchdog”, his right under Article 10(1) was engaged, and the absolute exemption at s. 32(2) (if interpreted to extend beyond the duration of the inquiry) was an interference with that right.

The FTT also decided that this interference could not be justified in these circumstances. Although the exemption pursued a legitimate aim, it was a disproportionate interference. It observed that where a social watchdog is involved, any balancing of interests is more likely to weigh in favour of individual rights. It expressly rejected the proposition that this outcome could only arise where applicants are journalists.

Finally, the FTT decided that this unjustified interference was to be remedied by the following interpretation: “by limiting s 32(2) to documents held by inquiries that have not concluded, Mr Kennedy’s Article 10 rights will not be interfered with in a disproportionate way”.

What now? The hearing will be resumed in the Court of Appeal, which will have the benefit of the FTT’s report. Panopticon can also confirm that there a number of other cases dealing with other absolute exemptions currently in the court and tribunal systems which will consider the application of Article 10. The FTT’s “report” in Kennedy therefore does not represent a settled position. It is, however, a very interesting twist.

Rachel Kamm appeared for the Charity Commission in the FTT.

Robin Hopkins