Kennedy v Information Commissioner

Information falling within section 32(2) of the Freedom of Information Act 2000 remains absolutely exempt after a statutory inquiry has concluded, provided it is held only by virtue of being contained in documents placed in the custody of the inquiry for its purposes. The exemption applies equally to court proceedings and inquiries. The term “document” includes electronic as well as hard-copy records. Documents originally held for another purpose may become exempt when placed in the custody of the inquiry and thereafter held solely for that purpose. The exemption may nevertheless be waived by the public authority. An appeal under section 59 is confined to points of law, and a tribunal’s factual assessment may be challenged only on the applicable stringent public-law grounds.

Dominic Kennedy, a journalist, requested information from the Charity Commission concerning statutory inquiries into the Mariam Appeal. The Charity Commission refused disclosure, relying principally on section 32(2) of the Freedom of Information Act 2000. The Information Tribunal held that some information fell outside the exemption, but that most of the requested material was exempt.

Mr Kennedy appealed to the Administrative Court under section 59, arguing that the exemption did not cover documents acquired before the inquiries, ceased when the inquiries ended, and did not extend to electronic records. The central issues were the scope and duration of the section 32(2) exemption and the meaning of “document”.

1. Appeal dismissed. The appeal was confined to questions of law. The Tribunal’s conclusion about when the inquiries ended was not irrational or unsupported by evidence. It was therefore not open to challenge on the applicable Wednesbury standard.
2. Documents initially held by the Charity Commission for another purpose fell within section 32(2) once placed in the custody of the inquiry and thereafter held only for the purposes of that inquiry. Documents retained for another independent purpose would not satisfy the statutory condition.
3. The section 32(2) exemption continued after the inquiries had concluded. The wording of section 32(1) and section 32(2) was materially parallel, and it was accepted that court documents retained after proceedings remained exempt. Section 63 of the Freedom of Information Act 2000 removed any remaining doubt by providing for the exemption to lapse when records became historical records. The Inquiries Act 2005 also supported that construction, to the limited extent it was relevant.
4. The Tribunal was entitled to conclude that the inquiries ended when the statements of results were published. An alternative conclusion might reasonably have been reached, but the conclusion adopted was not perverse. The court noted that the Charity Commission had subsequently amended its guidance.
5. The exemption was capable of waiver. Given the public importance of the subject matter, the Charity Commission was encouraged to develop guidance on disclosure of exempt documents.
6. “Document” in section 32 included both hard-copy and electronic records. A narrower interpretation would conflict with the definition of “information” in section 84 and would produce arbitrary results based solely on the medium in which information was recorded.

The appellant was ordered to pay the Charity Commission’s costs, subject to detailed assessment if not agreed.

• High Court (Administrative Court): appeal under section 59 of the Freedom of Information Act 2000 dismissed. The Information Tribunal’s decision of 14 June 2009 was upheld.