In Kennedy v Charity Commission (2014), a Times journalist (Mr Kennedy) sought the disclosure of information from the Charity Commission’s inquiry into a charity, the Mariam Appeal. The Charity Commission relied on s.32(2) of the Freedom of Information Act (FOIA). This exemption protects information from disclosure if it is in a document held or created by a public authority conducting an inquiry and the document is for the purposes of that inquiry. It is an absolute exemption.

The Supreme Court considered whether the exemption could be interpreted to allow Mr Kennedy access to the information he requested. Two of the main issues were:

  • Whether the exemption should not apply to inquiry documents after the inquiry was closed
  • If that failed, whether the exemption could be interpreted in light of Article 10 of the European Convention of Human Rights (ECHR) to give the same effect as above or that a public interest test should apply

The Court held that s.32(2) was clear. The exemption did apply to inquiry documents even once the inquiry was closed (until they are destroyed or up to 30 years (in the future 20 years).

The Court also held that Article 10 (freedom of expression) could not be used to interpret s.32(2) differently. This is because the intended effect of s.32(2) is to take this type of information (inquiry documents) outside of the freedom of information regime and apply the statutory and common law that is applicable to that type of inquiry. Any question as to disclosure would be governed by that other law. The majority considered that if that law entitles the requestor to the information or puts him in no less a favourable position than would be provided under Article 10 then there can be no basis for interpreting s.32(2) in light of Article 10. Lord Mance argued further that as the decision falls under other law, the application of Article 10 must be to that other law not s.32(2). The key point is that while information may be exempt under the FOIA, it could still be disclosed under other law. Indeed the Court reminds us that s.78 FOIA states: “Nothing in this Act is to be taken to limit the powers of the public authority to disclose information by it.”

 In this case, the relevant statute regulating inquiries held by the Charity Commission is the Charities Act 1993 (as amended by the Charities Act 2006, since replaced by the Charities Act 2011). Lord Mance giving the leading judgment considered the Charity Commission’s duties under the Charities Act. This commentary is obiter because the Court did not need to consider this to determine the case. However, it does provide a view as to the considerations the Charity Commission should take into account when determining whether information should be disclosed under its statutory duties.  Lord Mance considered that: “The proper functions and regulation of charities is a matter of great public importance and legitimate interest. The public interest in openness in relation to these questions is demonstrated positively by the objectives, functions and duties given to the Charity Commission by the Charities Act.”

These include:

  • Objectives to:
    • increase public trust and confidence in charities
    • enhance the accountability of charities to the general public
  • Functions to obtain, evaluate and disseminate information in connection with the performance of its functions or meeting its objectives
  • A duty to have regard to the principle that regulatory activity should be proportionate, accountable, consistent and transparent

The request in this case was made by a journalist in light of the “powerful public interest” to enable proper scrutiny of a charity. It was Lord Mance’s opinion that the Charity Commission should accede the request in the public interest unless the public interest in disclosure is demonstrably outweighed by any countervailing arguments.

 Lord Mance points out that the countervailing arguments will differ according to the nature of the inquiry. For example, a Charity Commission inquiry may depend upon information being provided by third parties and the Commission may be reliant on co-operation, liaison with third parties, and the gathering of confidential information. (Although, the Charity Commission does have powers to require the provision of accounts, statements, copies of documents and the attendance of individuals to give evidence or produce documents). In this particular case, some of the information may be sensitive information relating to national security or international affairs. Lord Mance was clear that all considerations would need to be taken into account.

Nevertheless, Lord Mance concluded his analysis of the Charities Act and whether information should be disclosed in accordance with the Charity Commission’s duties under the Charities Act by saying: 

“If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive considerations to outweigh the strong prima facie case that the information should be disclosed. …the Charity Commission’s objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request.”

These considerations are a reminder to public authorities that they may not simply rely on exemptions contained in FOIA if withholding access to information would be incompatible with their statutory functions or public law. It is also worth remembering that where a different legal basis for disclosing information may exist, the appropriate method for challenging a decision made under that different legal framework may be by way of Judicial Review. Of course, that raises other issues as to the practicalities of pursuing a Judicial Review.