Freedom of Information – it’s not the only law

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Whether you are making a freedom of information request or are subject to the Freedom of Information Act 2000 (FOIA), the Supreme Court’s judgment in Kennedy v Charity Commission (2014) reminds us that the Act is not the only means of accessing information

In Kennedy v Charity Commission (2014), a Times journalist (Mr Kennedy) sought the disclosure of information from the Charity Commission’s inquiry into a charity, the Mariam Appeal.

Section 32(2) FOIA

The Charity Commission relied on s.32(2) of the Freedom of Information Act (FOIA) to refuse disclosure. This exemption protects information from disclosure if it is in a document held or created by a public authority conducting an inquiry and the document is for the purposes of that inquiry. It is an absolute exemption.

Mr Kennedy’s case

Mr Kennedy argued that s.32(2) should be interpreted differently to allow him access to the information. He argued that the exemption should not apply after the inquiry had been closed. He also relied on Article 10 of the European Convention of Human Rights (freedom of expression) to interpret the exemption so that the exemption did not apply at the end of the inquiry or that it should be interpreted as a qualified exemption.

Supreme Court’s decision

The Supreme Court held that s.32(2) was clear. The exemption did apply to inquiry documents even once the inquiry was closed (until they are destroyed or up to 30 years (in the future 20 years).

The Court also held that Article 10 could not be used to interpret s.32(2) differently. This is because of the way the exemption operates. The intended effect of s.32(2) is to take this type of information (inquiry documents) outside of the freedom of information regime and apply the statutory and common law that is applicable to that type of inquiry. Therefore, any question as to disclosure would be governed by that other law and there was no basis for interpreting s.32(2) in light of Article 10. The key point is that while information may be exempt under the FOIA, it could still be disclosed under other law.

Considering disclosure under the Charities Act

In this case, the relevant statute regulating inquiries held by the Charity Commission is the Charities Act 1993 (as amended by the Charities Act 2006, since replaced by the Charities Act 2011). Lord Mance giving the leading judgment considered the Charity Commission’s duties under the Charities Act. This commentary is obiter because the Court did not need to consider this to determine the case. However, it does provide a view as to the considerations the Charity Commission should take into account when determining whether information should be disclosed under its statutory duties.

Lord Mance considered that:

“The proper functions and regulation of charities is a matter of great public importance and legitimate interest. The public interest in openness in relation to these questions is demonstrated positively by the objectives, functions and duties given to the Charity Commission by the Charities Act.”

The request in this case was made by a journalist in light of the “powerful public interest” to enable proper scrutiny of a charity. It was Lord Mance’s opinion that the Charity Commission should accede the request in the public interest unless the public interest in disclosure is demonstrably outweighed by any countervailing arguments.

Lord Mance points out that the countervailing arguments will differ according to the nature of the inquiry. For example, a Charity Commission inquiry may depend upon information being provided by third parties and the Commission may be reliant on co-operation, liaising with third parties, and the gathering of confidential information. (Although, the Charity Commission does have powers to require the provision of accounts, statements, copies of documents and the attendance of individuals to give evidence or produce documents). In this particular case, some of the information may be sensitive information relating to national security or international affairs. Lord Mance was clear that all considerations would need to be taken into account.

Nevertheless, Lord Mance concluded his analysis of the Charities Act and whether information should be disclosed in accordance with the Charity Commission’s duties under the Charities Act by saying:

“If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive considerations to outweigh the strong prima facie case that the information should be disclosed [...] the Charity Commission’s objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request.”

Conclusion

These considerations are a reminder to public authorities that they may not simply rely on exemptions contained in FOIA if withholding access to information would be incompatible with their statutory functions or public law. It is also worth remembering that where a different legal basis for disclosing information may exist, the appropriate method for challenging a decision made under that different legal framework may be by way of Judicial Review. Of course, that raises other issues as to the practicalities of pursuing a Judicial Review.

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