Does Article 10 create a right to information?

The Supreme Court is currently considering whether Article 10 of the European Convention on Human Rights incorporates a right to freedom of information. The Campaign has joined with the Media Legal Defence Initiative in intervening in this important case and are represented by Richard Clayton QC and Christopher Knight.

The case has been brought by Dominic Kennedy, a Times journalist, who was refused information by the Charity Commission under a blanket FOI exemption which applies regardless of the harm or benefit of disclosure. He argues that the refusal breached his rights under Article 10.

Article 10 guarantees the right to freedom of expression, including “the right to receive and impart information and ideas without interference by public authority”. The right can only be restricted on specified grounds and any restriction must be prescribed in law and necessary in a democratic society.

Traditionally, the European Court of Human Rights in Strasbourg has held that Article 10 deals with censorship.  It stops governments interfering with someone who want to communicate information to others, unless the interference can be shown to be justified and proportionate. But it does not – so the court has previously said – entitle someone to obtain information from a public authority which does not want to provide it.

However, in a landmark 2009 decision the Strasbourg court noted that it “has recently advanced towards a broader interpretation of the notion of ‘freedom to receive information’…and thereby towards the recognition of a right of access to information”[1]. Subsequent Strasbourg decisions have built on this principle, in particular where the information is sought by a “social watchdog” like the media or an NGO.

These cases have been cited by Dominic Kennedy who made an FOI request to the Charity Commission for information about its investigations into George Galloway MP’s ‘Mariam Appeal’, to provide medical supplies to Iraq. The Charity Commission had carried out three separate investigations into the Appeal but published only eight and a half pages about them – though it held some 10,000 pages of material.

The Commission refused Mr Kennedy’s request under section 32(2) of the FOI Act which exempts information contained in documents held solely for the purposes of a statutory inquiry. The exemption contains no test of harm and is not subject to the Act’s public interest test.

The Information Commissioner and Tribunal both agreed that the information was exempt, as did the High Court. The Court of Appeal was on the point of coming to the same conclusion when Mr Kennedy raised the new Strasbourg cases, which had only recently been published. He argued that the Charity Commission’s use of the blanket exemption, which applies regardless of whether  disclosure is harmful or beneficial, was an unjustified interference with his Article 10 rights.  The Appeal Court referred the point back to the Tribunal.

The Tribunal reported  that in its view there had been a breach of Mr Kennedy’s Article 10 rights and that section 32(2) should be interpreted in a way that was consistent with Article 10.  This, it said, would mean allowing it to be used only while an inquiry was underway, when dealing with FOI requests could be time-consuming or distracting. After an inquiry was over, section 32(2) should no longer be available. Other FOI exemptions would continue to protect legitimate interests [2].

However, by the time the Court of Appeal reconvened to consider the issue [3], the Supreme Court had rejected the Article 10 argument in different case [4]. The Court of Appeal considered itself bound by the Supreme Court decision but gave permission for Mr Kennedy to appeal to the Supreme Court himself. It observed that it was “difficult to justify” the sweeping nature of section 32(2) and  that the applicant in this case was a journalist with a “social watchdog” role of the kind recognised by Strasbourg. The Supreme Court had also suggested that in an appropriate case it might be appropriate to go beyond the Strasbourg case law to aid the development of human rights law or set out its proper boundaries. The Supreme Court heard the appeal at the end of November 2013 and its decision is now awaited.

If the court were to find that Article 10 incorporates a right to information it would bring substantial pressure to bear on other ‘absolute’ FOI exemptions, including section 44 which exempts any information whose disclosure is prohibited by law. Such exemptions, which operate as blanket bars on disclosure regardless of the circumstances, might not be compatible with Article 10.

Such a ruling would also create a new right to information held by public bodies or office holders which are not subject to FOI, ranging from Electoral Registration Officers to the Security and Intelligence Services. This right would have to be enforced in the courts rather than by the Information Commissioner and Tribunal. This would be less convenient for both requesters and authorities and it may add to the pressure to bring such bodies with the scope of the FOI Act itself.

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