Home > Cases > Kennedy v Information Commissioner [2010] EWHC 475

In June 2003, November 2003 and December 2005, the Charity Commission instituted three separate inquiries into the affairs of a charity in the exercise of its powers under section 8 of the Charities Act 19931 . Statements of results of the first two inquiries were published in June 2004. A statement of results of the third inquiry was published in June 2007. According to those statements, the inquiries had been closed in May 2004 and April 2007 respectively. The appellant, a journalist, requested information concerning the inquiries from the Charity Commission under section 1(1) of the Freedom of Information Act 20002 . The Charity Commission refused to provide any information, relying on the absolute exemption from disclosure under section 32(2) of the 2000 Act. On the appellant’s application under section 50 of the 2000 Act, the Information Commissioner upheld the Charity Commission’s decision on the ground that the information was being held only by virtue of being contained in documents placed in the custody of a person conducting an inquiry for the purposes of the inquiry. The Information Tribunal allowed the appellant’s appeal to the extent of requiring disclosure of a small proportion of the relevant documents, but upheld the Information Commissioner’s decision as to the remainder.

On appeal to the High Court, the decision of the Tribunal was upheld. Information contained in documents which were already held by a public authority prior to an inquiry came within the scope of the exemption in section 32(2) of the Freedom of Information Act 2000 if they were placed in the custody of the authority as conductor of the inquiry and no longer held for any other purpose; on the proper interpretation of section 32(2) of the 2000 Act, the adverbial phrase “for the purposes of the inquiry or arbitration” qualified the word “placed” in section 32(2)(a) rather than the word “held” in the introductory part of section 32(2), and subsequent events could not alter the fact of documents having been placed in the custody of a person holding an inquiry or arbitration for the purposes of the inquiry or arbitration; that, therefore, once documents had been so placed, the section 32(2) exemption continued to apply to the information contained in them until the expiry of the 30-year period prescribed for the duration of that exemption by sections 62(1) and 63(1) of the 2000 Act provided Kennedy v Information Commissioner that the information was held by the public authority only by virtue of being contained in those documents; that the meaning of the word “document” in section 32(2) of the 2000 Act was not confined to hard copy documents, but included electronic records of information; and that, accordingly, the tribunal had correctly applied the exemption and had not misdirected itself in law.

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