Home > Cases > Kennedy v The Information Commissioner & Anor [2011] EWCA Civ 367

The claimant journalist made a request under the Freedom of Information Act 2000 (the 2000 Act) for information in relation to inquiries which the second defendant Charity Commission had made under s 8 of the Charities Act 1993. The second defendant stated that it held information about the inquiry but that it was withholding the information on the ground, inter alia, that it was exempt from disclosure under s 32 of the 2000 Act. The second defendant reviewed, but upheld, its decision. Consequently, the claimant made a complaint to the first defendant Information Commissioner. The first defendant rejected the claimant’s complaint and stated that all of the requested information was exempt by virtue of ss 32(2)(a) and (b) of the 2000 Act. The claimant appealed to the Information Tribunal (the tribunal) which held that although some of the material fell outside the s 32(2) exemptions, the bulk of the material fell within it. The claimant’s appeal to the High Court was unsuccessful (see [2010] All ER (D) 156 (Jan)). The claimant appealed.

The issue was whether the exemption provided by s 32 subsisted only for the duration of the inquiry or whether it continued after the inquiry had concluded. Consideration was given to s 63 of the 2000 Act and s 18(3) of the Inquiries Act 2005 (the 2005 Act).

Held: (1) The place of the word ‘only’ after ‘held’ in s 32(2) meant that the information was exempt if the only reason it was held was that it was held ‘by virtue of’ the circumstances prescribed by s 32 the width of those circumstances being in dispute. If it was being held for some other reason or purpose other than the specified reason or purpose it would not be exempt. The question was whether the phrase ‘for the purposes of the inquiry or arbitration’ related to and qualified: (a) the reason for placing the document in the custody of a person conducting the inquiry or arbitration; or (b) the reason why the document was being held by the public authority. The natural meaning of s 32(1) was that the conditions set for the exemption to apply were that: (a) the information was contained in a document filed with the court or served upon or by public authority or created by the court in each case for the purpose of the proceedings in the particular cause or matter; and (b) that the information was held by the public authority at the time of the request for its disclosure only by virtue of being contained in such a document.

In all the circumstances, the appeal would have been dismissed but for the fact that following the circulation of a draft of the instant judgment, the claimant asked the court to revisit the judgment in order to deal with his submission that the court had to, pursuant to s 3 of the Human Rights Act 1998 (the 1998 Act) read and give effect to s 32(2) of the 2000 Act in a way that was compatible with convention rights, including, in particular, the right to freedom of expression protected by art 10 of the European Convention on Human Rights. Accordingly, the case had to be reconsidered in the light of the 1998 Act

Following further consideration of the 1998 Act point, and in the exercise of the power provided by CPR 52.10(2)(b) the human rights issue would be referred to the tribunal for its determination having taken such evidence and heard such argument as it considered might be appropriate. Accordingly, the appeal would be stayed in the meantime and would be restored for further hearing in the light of the tribunal’s report.

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