Section 32 of the Freedom of Information Act allows public bodies to refuse access to documents which are held purely for the purposes of proceedings (which can include inquests) or statutory inquiries or arbitrations.

In the recent case of Dominic Kennedy v Information Commissioner (1) Charity Commissioner (2), the Court of Appeal considered the interpretation of Section 32(2) and particularly whether the exemption could be applied after the conclusion of the inquiry.

This was in the context of a journalist who had applied to the Charity Commission for copies of the documents considered as part of the inquiries into the Marium appeal. The inquiries were concluded in 2007 and therefore Mr Kennedy sought to argue (among other things) that the Charity Commission was no longer holding the documents purely for the purpose of the inquiry (a requirement of Section 32) and were in fact holding them for archiving purposes. He therefore argued that the documents should be disclosed.

The Court was not minded to accept this argument as it would mean that any documents provided as part of an inquiry would be available to the public after the conclusion of the inquiry. It would also mean that Section 63(1), which disallows the use of Section 32 on documents that are older than 30 years (and therefore by construction implies that the appropriate time to disclose the papers is after 30 years have passed) would be redundant.

However, the Court of Appeal has stayed the appeal and asked the Information Tribunal to consider the application of Article 10 (Freedom of Expression) of the ECHR. The case continues.

Section 32 is often overlooked in favour of other exemptions such as the personal information (Section 40), information provided in confidence (Section 41) and legal professional privilege (Section 42) exemptions. However, as Section 32 is an absolute exemption which can apply to documents arising out of court proceedings (which includes tribunals and Inquests) it should be considered as an alternative in appropriate cases.