Tribunal decision on Article 10

The First-tier Tribunal has published its report to the Court of Appeal in the case of Dominic Kennedy v Information Commissioner (EA/2008/0083). The case relates to a request by Dominic Kennedy, a journalist with The Times, for information concerning the Charity Commission’s investigations into George Galloway’s ‘Mariam Appeal’. The Charity Commission refused the request citing the absolute exemption in section 32(2) of the FOI Act for information held solely for the purpose of a statutory inquiry. The refusal was upheld by the Information Commissioner, the First-tier Tribunal and the High Court.

The Times appealed to the Court of Appeal. The issue before the Court of Appeal was whether the s.32(2) exemption lasts only for the duration of an inquiry or whether it continues for 30 years after the inquiry has ended. The Court of Appeal came close to dimissing the appeal, but at the last moment, Philip Coppel QC for The Times asked the Court to reconsider, submitting that The Times was entitled it to receive the information from the Charity Commission under Article 10 of the European Convention of Human Rights. Article 10 of the ECHR provides:

1. 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. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.

2. 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.”

Mr Coppel maintained that s.32(2) was a disproportionate interference with The Times’ Article 10 right. The Court of Appeal stayed the appeal and referred this issue back to the Tribunal:

1. Pursuant to CPR 52.10(2)(b) the following issue be remitted to the First-Tier Tribunal (Information Rights) to be determined:

Whether s 32(2) of the Freedom of Information Act 2000 should in the circumstances be read down pursuant to s 3 of the Human Rights Act 1998 and Article 10 of the European Convention onHuman Rights, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.

2. Pending the determination by the First-tier Tribunal (Information Rights) of the said issue the appeal be stayed.

Lord Justice Ward explained his reasons for referring the issue back to the Tribunal as follows:

( 1 ) Although the point was not argued before the appeal tribunal there is an understandable reason for that omission. Both judgments of the Strasbourg Court upon which Mr Coppel relies were only delivered at or about the time of the hearing before the tribunal and were not reported until later. These cases are Tarsasag a Szabadsagjogokert v Hungary [2009] ECHR 618 decided on 24th March or 14th April 2009 and apparently finalised only on 14th July 2009 and Kenedi v Hungary [2009] ECHR 78, (2009) BHRC 335 which was dated 26th May 2009. Although the arguments is late, it is not so late that we should ignore these very recent and potentially important new developments of Strasbourg jurisprudence.

( 2 ) The present case is moreover an ideal one for the Article 10 point to be tested. Important and difficult questions are raised in the counter-argument of Mr Beer. If the appellant has to rely on his status as a journalist to bring Article 10 into play, should the Court be reading section 32( 2 ) down when it would not be obliged to do so were the applicant an ordinary citizen not able as the public watchdog to invoke Article 10? Mr Beer submits that the FoIA is “applicant and motive blind”. Another important question is whether the Charity Commission hold an information monopoly which may be the necessary pre-condition to establish before Article 10 can be engaged: see Tarsasag. If Article 10 is engaged and interfered with is such interference justified and proportionate? All these matters may require further evidence.

(3) It is unlikely, at least so far as concerns the Charity Commission, that a better case for analysing the Convention point will arise again in the near future. If, as we are told, the Charity Commission are considering changing their rules to reflect more accurately procedures adopted by the courts for disclosure of information, then it would be helpful they did so with the implications of the Human Rights Act known in advance.

(4) The matters which the appellant seeks to investigate are obviously matters of general public interest and his investigation may be totally thwarted if his case fails as it would if we refused to countenance the Human Rights argument.

(5) If section 3 of the Human Rights Act requires the reading down of section 32( 2 ) then my hesitations about the proper construction to place upon that subsection, and the more firmly expressed disenchantment of Jacob L.J., can be assuaged.

The Tribunal’s conclusion is that the recent Strasbourg cases do not yet establish a general right of access to information but that they do establish an individual right in certain circumstances. In particular:

(1) Where a request is made by the media or by a ‘social watchdog’ organisation on a matter of public interest, Strasbourg now recognises that Article 10 provides a right of access.

(2) For countries which have no FOI law, at least in relation to information that will inform public debate, the absence of that law will itself infringe Article 10(1). The same is true for information that is outside the scope of an FOI law, where such a law does exist.

(3) The above infringement of Article 10(1) can only be justified where provided for by Article 10(2).

(4) The section 32(2) exemption relied on by the Charity Commission is a legitimate and proportionate interference with the Article 10(1) right for duration of the Charity Commission inquiry, when it protects the processes of the inquiry itself from distraction and interference.

(5) After the inquiry is over, the exemption serves no legitimate purpose. It merely protects the interests of third parties which have supplied information to the Charity Commission; but other FOI exemptions already exist to do this. The s.32(2) protection is absolute in all circumstances, regardless of any harm that might be done, any public interest in disclosure and any consent of the third party. In these circumstances the interference is not proportionate.

(6) To read section 32(2) in a way that is consistent with Article 10, it is necessary for the exemption to cease to have effect once the inquiry is over.

This matter now returns to the Court of Appeal. If the court endorses the Tribunal’s conclusions it will have an extremely positive effect not just on narrowing the scope of section 32(2) of the FOI Act, but potentially the other other absolute exemptions in Act such as s.44(1) and on the status of bodies or categories of information that are currently outside the Act’s scope.

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