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Landmark ruling on Article 10

In a landmark decision, the Grand Chamber of the European Court of Human Rights has ruled in the case of Magyar Helsinki Bizottság v. Hungary that there is a right to information from public authorities under Article 10 of the European Convention on Human Rights. The UK’s Supreme Court had previously found that the Strasbourg court’s case law had not established this – but the new decision clearly does so.

Article 10 guarantees the right to freedom of expression, including the right to ‘receive and impart information’. Traditionally, this has been interpreted as preventing governments from censoring what one person wanted to communicate to another. However, recent Strasbourg decisions have found that it also includes the right to obtain information from government. That approach has now been authoritatively endorsed by the Grand Chamber. But it has ruled that the right does not apply to all requests, only those where access ‘is instrumental for the individual’s exercise of his or her right to freedom of expression.’ This may apply where the requester’s purpose is to contribute to public debate on a matter of public interest. The requester would also have to fulfill a ‘public watchdog’ role, which the Grand Chamber said might apply not only to the press and NGOs but also to authors, academics, bloggers and ‘popular users of social media’.

The Campaign intervened in the case with ARTICLE 19, the Media Legal Defence Initiative, the Access to Information Programme in Bulgaria and the Hungarian Civil Liberties Union. Barristers Richard Clayton QC and Christopher Knight acted for the NGOs.

The decision potentially means that public bodies which are not subject to the FOI Act, ranging from GCHQ and the National Crime Agency to electoral registration officers, will be subject to a new disclosure obligation where information is sought for public benefit. They could refuse only on the grounds provided by Article 10 itself, for example to protect national security, law enforcement, confidential information or the rights of others. Any restriction on access must be necessary and proportionate – a form of public interest test. For bodies not subject to FOI, the new right would have to be enforced through the courts rather than by the Commissioner and Tribunal.

For bodies which are subject to FOI, the Commissioner and Tribunal will have to take account of the new ruling. The Act’s ‘absolute’ exemptions – those which are not subject to the public interest test – will only be valid where they comply with Article 10. This is a severe challenge to the concept of an ‘absolute’ exemption.

For cases involving ‘qualified’ exemptions, where the Act’s public interest test already applies, the Article 10 decision will probably make no difference. Requests which have previously been turned down are unlikely to do better because of the change.

There are more Article 10 cases in the Strasbourg pipeline. These include one brought by Times journalist Dominic Kennedy against the Charity Commission’s refusal to disclose information about its investigations into George Galloway’s ‘Mariam appeal’. The Charity Commission had argued that an absolute FOI exemption, for information obtained for a statutory inquiry, meant that the relevant files were exempt en masse. Mr Kennedy argued that this breached his Article 10 right. The Supreme Court observed that if he was right, Article 10 would provide a ‘European-wide Freedom of Information law’.

By a majority of 5-2, it concluded that in the absence of a clear ruling from Strasbourg’s Grand Chamber, no such right had been established.

That has now changed. For bodies subject to the FOI Act, the Information Commissioner and Tribunal may now have to take account of Article 10 when applying absolute exemptions. An example of how this might work emerged during the Kennedy case. A panel of the First-tier Tribunal, chaired by Judge John Angel was asked by the Court of Appeal to consider how Article 10 affected the case. It concluded that a blanket exemption which protected information even when disclosure could do no harm was not compatible with Article 10. Under the Human Rights Act legislation must, so far as possible, be interpreted in a way that is compatible with European Convention rights. The Tribunal considered that this meant that the exemption (in section 32(2)) could apply while the inquiry was taking place, when it would help protect it from ‘potentially time-consuming, conflicting and distracting’ requests. Afterwards, its use was not proportionate to a legitimate aim – and it could not be used. Sensitive information held by the inquiry would still be protected by a ‘suite of other exemptions’.

The ruling will also have implications for the FOI Act’s ministerial veto. Following the report of the Commission on FOI chaired by Lord Burns, the government accepted its recommendation that in future the veto should only be used against the Information Commissioner’s decisions, not those of the Tribunal or courts. The Commission also recommended that the right to appeal against certain Commissioner decisions should be withdrawn to prevent those decisions being overturned by the Tribunal. This would allow the government to relinquish the use of the veto against Tribunal decisions, without losing the right to the last word.

The Grand Chamber decision, however, means that the veto, and the ability to block appeals, may not comply with the Article 10 right to information, and could be struck down.

The new ruling may thus expose some of the least acceptable provisions of the FOI Act to legal challenge. Progress may be slow, and involve multiple appeals, but the decision promises a significant shake up of key FOI restrictions.

This case will be discussed on our next Information Commissioner & Tribunal Decisions course on 1 December 2016. 

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