Case Preview: Kennedy v The Charity Commission
10 Tuesday Dec 2013
The Supreme Court recently heard an appeal relating to the Freedom of Information Act 2000, s 32(2), under which information held by a public authority pursuant to a statutory inquiry is exempt from disclosure. The case concerns whether, on a proper construction of the Act, the exemption continues to apply for 30 years after the inquiry ends and if so, whether this would interfere with the appellant’s right to freedom of expression under the European Convention on Human Rights, art 10(1).Background Facts
The appellant is a journalist who sought disclosure of information from the Charity Commission relating to its inquiries into the ‘Mariam Appeal’. The Mariam Appeal was launched by George Galloway in 1998 for the purposes of providing medical assistance to Iraqi children and raising awareness of the poor health conditions in Iraq. The Charity Commission found, among other things, that the Mariam Appeal had received significant donations linked to the Oil-for-Food Programme. The appellant’s request for documents relating to the inquiries was rejected on the basis of s 32(2) of the Act.
The Court of Appeal Decisions
The appellant argued that, on a conventional interpretation of the Act, the exemption provided by s 32(2) only subsists for the duration of the inquiry. The Court of Appeal, however, reading section 32 with ss 62 and 63 of the Act, reluctantly held that the exemption continues to apply for 30 years after the inquiry has concluded.
This decision allows all information deployed in a statutory inquiry to be kept secret for 30 years after the conclusion of the inquiry. This is the case regardless of the content of the information, the harmlessness of disclosure or the public interest in disclosure.
In response to the appellant’s late submission relying on the ECHR, the Court of Appeal remitted the case to the First Tier Tribunal (Information Rights) to consider whether art 10 was engaged and if so, whether s 32(2) needed to be read down so as to limit the exemption to the duration of the inquiry. The First Tier Tribunal found in favour of the appellant holding that s 32(2) interfered with art 10(1) and this was not justified under art 10(2).
The case returned to the Court of Appeal after the Charity Commission challenged the decision of the First Tier Tribunal effectively by way of cross-appeal.
Article 10 of the ECHR provides:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
An established line of European Court of Human Rights (ECtHR) decisions, beginning with Leander v Sweden (1987) 9 EHHR 433, has confirmed that art 10 includes the right to receive information from others who wish to impart it. This did not extend to a right of access to information held by the State when the State was not willing to provide it. However, more recent decisions such as Tarsasag a Szabadsagjogokert v Hungary (2011) 53 EHRR 3 and Kenedi v Hungary App No. 31475/05 have indicated that the ECtHR is moving towards a broader interpretation of the right to receive information.
Before the Court of Appeal could consider the art 10 issue, the Supreme Court handed down its decision in Sugar v BBC  UKSC 4. Sugar concerned an application to the BBC for disclosure of the Balen Report on the BBC’s reporting of Middle Eastern affairs in recent years. Lord Brown held that the ECtHR cases fell far short of establishing that an individual’s rights were interfered with whenever a public authority, acting consistently with domestic legislation, refuses access to documents. Lord Mance agreed. Lord Wilson stated that he could “countenance somewhat more readily than does Lord Brown” the possibility that refusal to disclose the requested information interfered with art 10. Lords Phillips and Walker did not comment on the issue.
The Court of Appeal expressed some reservations but felt bound to follow Lord Brown’s analysis in Sugar. It allowed the Charity Commission’s cross appeal but granted permission for Mr Kennedy to appeal to the Supreme Court.
Appeal to the Supreme Court
This case presents an interesting opportunity for the Supreme Court to reconsider the boundaries of art 10(1). The hearing took place on 29 and 31 October before Lords Neuberger, Mance, Clarke, Wilson, Sumption, Carnwath and Toulsen.
Natasha Nguyen is an Australian lawyer currently on sabbatical. She has previously worked as a lawyer at Corbett & Co International Construction Lawyers in London and as a Research Assistant for the Law Commission (England and Wales).