The appeal discussed the relationship between the Charity Commission and the press. It also concerned the relationship between the Freedom of Information Act 2000 (FOIA) and the statutory and common law position regarding disclosure of information outside the scope of the FOIA.
Mr Kennedy, an experienced journalist with The Times, investigated three inquiries undertaken by the Charity Commission, under the Charities Act 1993. These related to the Mariam Appeal, founded by George Galloway MP in 1998, which operated until 2003. The two brief reports issued by the Charity Commission on the topic, Mr Kennedy believed were significantly unclear as to the basis of the inquiries. As such, on 8th June 2007 he made requests for disclosure of documents under the FOIA.
The Charity Commission pointed to an absolute exemption contained in section 32(2) of the FOIA. This would exempt them from any duty to disclose any document placed in its custody or created in relation to an inquiry which it conducted in the exercise of its functions, in the public interest. They submitted that this exemption lasted until the document was destroyed, or until at least 30 years after, if it should be publicly preserved under the Public Records Act 1958 s3.
The appeal specifically concerned whether section 32(2) contained an absolute exemption, continuing post-inquiry. If it did, Mr Kennedy then relied on the Strasbourg case law, and proposed that Article 10 of the Convention imposed a positive duty of disclosure on public authorities. To comply with Article 3, section 32 must be read down so as to cease exemption on the close of an inquiry. All submissions failing, the appellant implored that the court should make a declaration of incompatibility. Finally, there was a consideration of statutory and common law outside the FOIA.
The judgment discussed how section 32 dealt with information held by courts and persons conducting an inquiry or arbitration. The intention of this section, it was considered, was not that such information should not be disclosed, but that it should be taken outside the FOIA. Disclosure was meant to be addressed under the more specific governing mechanisms of those undertaking enquires; in this case the Charities Act 2006 (replaced by Charities Act 2011).
In the present case, as if the FOIA were an exhaustive scheme, the argument was in effect that unless a prima facie right to disclosure can be found in FOIA, UK law must be defective and in breach of Article 10 ECHR.
However, that was deemed by the Justices to misread the statutory scheme and omitted to take into account the common and statutory law position. The Court of Appeal held in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420,  QB 618 that it was “quite wrong to infer from the exclusion” by section 32 of court documents from the FOIA that “Parliament intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be appropriate under the open justice principle” (para 74). Although that case concerned court documents, it was stated that the same principle applied to inquiry documents.
In this appeal, Mr Kennedy’s claim to disclosure by the Charity Commission had only ever been pursued by reference to the FOIA. Outside the FOIA, the refusal to disclose could have been tested by judicial review on ordinary public law principles. Instead, Mr Kennedy’s claim was put on the basis that the FOIA must be construed or remodelled so as to give him a claim.
The only claim that Mr Kennedy made was for disclosure under section 32. It was concluded in summary by Lord Mance, that:
i) Mr Kennedy’s case was not entitled to succeed on the claims he has pursued by reference to section 32 of the FOIA, but it was not because of any conclusion that he has no right to the disclosure sought.
ii) He failed in the claims he had up to this point made because; the scheme of section 32 read in this case with the Charities Act 1993 is clear and; the route by which he may be entitled to disclosure, is not the remodelling of section 32, but is under the Charities Act construed in the light of common law principles and/or in the light of Article 10 of the Human Rights Convention, if and so far as that Article may be engaged.
iii) The Charities Act (without reference to Article 10) should be read as putting Mr Kennedy in no less favourable position than he would be if pursuing the case that Article 10 by itself imposes on public authorities a general duty of disclosure of information.
iv) It is deemed that Article 10 does not contain so general a duty.
Philip Coppel QC appeared for Mr Kennedy.
Click here for the press summary.
Click here for the judgment.
Click here to read about the case in The Times (subcription needed).