Out-Law News 4 min. read
30 Mar 2012, 3:58 pm
The Court ruled that Dominic Kennedy, a reporter with the Times newspaper, was not entitled to information held by the Commission under the terms of freedom of information (FOI) laws.
A recent ruling by the Supreme Court in a case involving the BBC contained "binding" findings that meant that Kennedy's right to freedom of expression was not a factor in determining his right to obtain the information he sought, the Court of Appeal ruled.
However, the Court said it would allow its decision to be appealed to the Supreme Court to determine whether the findings in the BBC case do apply to the particulars of Kennedy's case. Mr Justice Etherton admitted that reading the Supreme Court's ruling in the way he had had resulted in the "full extent" of a restriction to the disclosure of information applying under the terms of the Freedom of Information Act and that this "appears difficult to justify".
An Information Rights Tribunal (Tribunal) said that Kennedy was entitled to receive information The Charity Commission was holding from three inquiries it conducted. The Charity Commission challenged that ruling.
Kennedy had previously won the right to the information which relates to a charity appeal launched by George Galloway in 1998.
Under UK FOI laws individuals have a general ‘right to know’, which entitles them to be provided with information held by Government departments and public bodies. However, those bodies can legitimately withhold information requested in some circumstances.
Information can be held back under qualified and absolute exemptions, although in the case of qualified exemptions organisations are still obliged to conduct a 'public interest test' to determine whether it is right for information to be disclosed – the presumption being in favour of that disclosure.
Section 32 of the Freedom of Information Act (FOIA) provides an absolute exemption for public bodies to withhold information. It states, in part, that information does not need to be disclosed if it is "held only by virtue of being contained in any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration."
Under FOIA information contained in inquiry documents become 'historical records' 30 years following the beginning of the year after that information was created and generally must be disclosed upon request. New legislation has been enacted to revise the 30 year wait down to 20 years.
The Court of Appeal has previously ruled in the Kennedy case that the inquiry exemption could only be relied upon throughout the duration of an inquiry, but the Court of Appeal said that it did not only apply to that time frame.
However, despite its ruling the Court asked Tribunal to determine whether in this case the exemption should be said to have ended "upon the termination of the relevant statutory inquiry".
The Tribunal unanimously decided that Kennedy's freedom of expression right would be interfered with if the inquiry exemption had been read conventionally. It said the interference was not "necessary in a democratic society because it is not proportionate to a legitimate aim".
Under the European Convention on Human Right (ECHR) everyone is entitled to a general right to freedom of expression. The "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers" is included within this right.
The ECHR qualifies the free speech rights by stating that they "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."
The Tribunal had also said that "so far as it is possible to do so" the inquiry exemption "should be construed in a manner that is consistent" with the freedom of expression right and that "limiting" the application of the exemption to during the course of inquiries would not interfere with Kennedy's freedom of expression right "in a disproportionate way".
The Charity Commission challenged the Tribunal's findings and the Court of Appeal upheld its appeal on the basis of "binding" findings made by the Supreme Court in a recent ruling.
Earlier this year the Supreme Court ruled that the BBC was not obliged to disclose a copy of a report into the corporation's coverage of Middle Eastern affairs. The BBC said that FOIA entitled it to withhold the information in order to protect journalistic sources.
In the Supreme Court's ruling one of the judges, Lord Brown, had said that the exemption relied upon by the BBC did not interfere with the freedom of expressions right of the requester, Steven Sugar, in the case. Lord Brown said Sugar did not have "any relevant right of access to information" under the terms of FOIA and therefore "had no such freedom".
Lord Justice Etherton at the Court of Appeal said: "Even if I am wrong that the analysis and conclusion of Lord Brown on the [general freedom of expression rights] issue are part of the ratio of [the BBC case] I would nevertheless follow them as a very recent authoritative pronouncement by the Supreme Court."
"It is more appropriate for the Supreme Court to decide whether or not the factual situation in the present case is sufficiently different in material respects from that under consideration in [the BBC case] to fall within the ambit of [the general freedom of expression rights] whether under existing [European Court of Human Rights (ECoHR)] jurisprudence or, in the light of policy considerations, a desirable and logical extension of the existing [ECoHR] jurisprudence," the judge said.