Disclosing Court Records under FOIA

June 16th, 2009 by Anya Proops QC

The Tribunal has recently handed down a decision in which it reached a number of important conclusions on the application of s. 32 FOIA (the courts records exemption) – Dominic Kennedy v IC & Charity Commissioners (EA/2008/0083). The appeal was concerned with a request which had been made to the Charity Commissioners for disclosure of information as to its inquiry into ‘the Mariam Appeal’. The appeal had been set up by George Galloway MP and its purposes were stated to include providing medical support to the Iraqi people. The Charity Commissioners refused disclosure of the requested information on the basis that it amounted to a court record and, hence, was absolutely exempt from disclosure under s. 32 FOIA.

 

The first issue which the Tribunal was called upon to determine was whether the word ‘document’ as it appears in s. 32 included electronic documents or merely hard copy documents. This was an issue in the appeal because, in contrast with all other exemptions, s. 32 focuses on information contained in ‘documents’. The Tribunal decided that the word ‘documents’ as it appears in s. 32 should be given an expansive interpretation so as to include both electronic documents and hard copy documents, not least because this is the result which Parliament must plainly have intended in enacting s. 32 (paras. 58-60). The Tribunal also held that s. 32 can apply, not merely to records relating to on-going inquiries, but also to inquiries that are closed (paras. 86-92).

 

In the course of its decision, the Tribunal accepted that it was giving s. 32 ‘a very wide scope’, which contrasted with the approach taken by the Tribunals to other exemptions in FOIA. However, it concluded that this was the required result given the need to respect the autonomy of the courts and those bodies which conduct statutory inquiries and arbitrations (para. 92).

 

The Tribunal went on to find that the general implications of its findings were that

 

a) If after a court decision or an inquiry closes then anyone can ask for the leave of the court or person conducting the inquiry for documents and the judge or authority can consider this but outside the realms of FOIA. Courts have rules for this and government inquiries also envisage similar rules. Therefore we would recommend that the Charity Commission considers adopting such rules; and

 

b) If documents are provided by other public authorities then a person can always make an FOIA request to them and they would not be able to rely on s.32(2)’ (para. 95)

 

The approach adopted by the Tribunal was consistent with the approach adopted in the earlier case of Szucs v Information Commissioner (EA/2007/0075). 11KBW’s Clive Sheldon appeared on behalf of the Commissioner in Kennedy.