The Court of Appeal has referred back to the First Tier Tribunal (Information Rights) (the "Tribunal") the issue of whether s. 32(2) of the Freedom of Information Act 2000 ("FOIA") (which provides an exemption for information created or obtained for an inquiry or arbitration) should be read down in accordance with the Human Rights Act so as to be compatible with Article 10 ECHR, the right to freedom of expression. The Court also ruled on the scope of the exemption, holding that it protects information even after the end of the relevant proceedings.

Key Points

  • Exemptions under FOIA must be viewed in context and in their place in the legislation as a whole and the need to construe the exemptions restrictively cannot displace their true meaning.
  • The exemption in s.32 (2) protects information which was created or obtained by a public authority for the purposes of an inquiry or arbitration, even after the inquiry has closed or the arbitration has concluded.
  • The right to freedom of expression (Article 10 ECHR) may be engaged when considering requests under FOIA.  

The request for information

The case began as an appeal about the scope of the exemption in s.32 (2) (b) FOIA, which reads as follows:

"Information held by a public authority is exempt if it is held only by virtue of being contained in –

…any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration."

The appellant journalist, Mr Kennedy, had made a request for information under s.1 FOIA to the Charity Commission, asking it to release documents relating to its inquiry into a charitable appeal which raised money to bring Iraqi children to the UK for medical treatment (known as the Mariam Appeal and spearheaded by George Galloway from 1998 to 2003).

The Charity Commission refused Mr Kennedy's request, saying that the information was exempt from disclosure under s.32 (2) FOIA because it had been received or created for the purposes of an inquiry. Mr Kennedy argued that this exemption only applied whilst the inquiry was ongoing, and ceased to apply once the inquiry had been concluded because at that point the information was no longer held for the purposes of the inquiry. The Charity Commission's decision was upheld by the Information Commissioner and Tribunal. Mr Kennedy's subsequent appeal to the High Court was dismissed but the judge granted permission to appeal on the issue of the interpretation of s.32 (2). The main issue in contention was therefore whether the exemption in s.32 (2) (b) provided an exemption from disclosure after the conclusion of an inquiry.

The construction issue

Lord Justice Ward, who gave the leading judgment in the Court of Appeal, first considered whether the subsection had a clear grammatical meaning, taking into account the grammatical construction of the exemption and even the punctuation. Having concluded that the grammatical construction was ambiguous, if not in favour of the appellant, he went on to consider the purposive construction of the section, before drawing comparisons with and inferences from s.32(1) and s. 63(1) FOIA and also making reference to the Inquiries Act 2005. Despite this detailed analysis, he still concluded that he could not extract a "clear and certain meaning" for the section and found that it was at least susceptible to the meaning given to it by Mr Kennedy. However, he held, somewhat reluctantly, that the section had to be viewed in its context and in its place in the legislation as a whole and therefore was to be construed as having the meaning ascribed to it by the Charity Commission and the Tribunal. The information was protected by the exemption even after the inquiry had closed, subject to the 30 year longstop provided for by s.63 FOIA. As such, the judge was moved to dismiss the appeal.

The human rights issue

In a final twist however, and in his own words "notwithstanding my embarrassment on this volte face", Ward LJ did not dismiss the appeal but instead referred the case back to the Tribunal. This was because, having seen the draft judgments, Mr Kennedy invited the Court to reconsider them in the light of two very recent decisions of the European Court of Human Rights. He argued that these cases supported his contention that the Court, as a public authority, was obliged under s.3 Human Rights Act ("HRA") to construe the exemption in a way which was compatible with Convention rights, specifically Article 10.

Ward LJ considered that although the human rights argument had come late in the day, it was not so late that it should be ignored in the context of very recent and potentially important developments of Strasbourg jurisprudence. He also considered that the case was an ideal one for the Article 10 point to be tested. Issues such as whether the appellant's status as a journalist could or should be a determining factor when considering whether Article 10 was engaged and whether any interference with the Article 10 rights was justified and proportionate, were matters of general public interest.

Comment

The effect of the Court's ruling on the scope of s.32 (2) (b) is significant, as it means that information given to or created by a public authority for the purposes of an inquiry or arbitration may be withheld, regardless of its content, the harmlessness of disclosure and any public interest in its contents (s.32 (2) being an absolute exemption). This will be the case for 30 years after the inquiry has closed. It should be remembered, however, that there is no obligation on a public authority to rely on the exemption and it may choose to waive its right to do so. The Tribunal and the Court of Appeal have recommended that the Charity Commission (and presumably other public bodies with statutory powers to hold inquiries) should put in place a set of rules governing disclosure in the same way as CPR 5.4 applies to the disclosure of court documents which are covered by their own FOIA exemption (s.32 (1)).

The other real point of interest will be whether the Tribunal decides that exemptions under the FOIA (and specifically s.32 (2) in this case) should be interpreted in such a way as to be compatible with Article 10 ECHR, and if so what the impact of that will be. It is clear that the Tribunal and courts, as public authorities for the purposes of s.6 HRA, should act compatibly with the Convention rights in carrying out their functions. There have already been a number of cases highlighting the need to consider the impact of disclosure on Article 8 rights – specifically in the context of the exemptions for confidential information and third party personal data. A finding that the authorities must interpret exemptions compatibly with the Convention rights would further strengthen the link between information rights and human rights.

So, watch this space…

Kennedy v (1) Information Commissioner and (2) Charity Commission [2011] EWCA Civ 367