Kennedy v The Information Commissioner & Anor

Section 32(2) of the Freedom of Information Act 2000 provides a class-based exemption for information held only because it is contained in documents placed with, or created by, a person conducting a statutory inquiry for its purposes.

The exemption continues after the inquiry closes. It is read consistently with section 32(1), and its duration is limited by the historical-record provisions in section 63(1). The exemption is not displaced merely because disclosure would be harmless or in the public interest.

That construction remains subject to the duty under section 3 of the Human Rights Act 1998 to interpret legislation compatibly with Convention rights. The Article 10 issue was therefore referred for further determination.

A journalist requested information from the Charity Commission concerning its inquiry into the Mariam Appeal under the Freedom of Information Act 2000. The Commission relied on section 32(2), and the Information Commissioner rejected the complaint.

The Information Tribunal held that some material fell outside the exemption but that most of approximately 10,000 pages was exempt. The Administrative Court, Calvert-Smith J, dismissed the appeal on 19 January 2010. Permission to appeal was granted on the construction and temporal scope of section 32(2).

The Court of Appeal also considered a late argument based on Article 10 of the ECHR. The central issues were whether the exemption survives the closure of an inquiry and whether a compatible interpretation is required.

Disposition. Ward LJ would have dismissed the appeal on the statutory construction issue, but accepted that the late Article 10 argument should be examined. The Article 10 issue was referred to the tribunal under CPR 52.10(2)(b), the appeal was stayed, and the matter was to return to the Court of Appeal after the tribunal’s report. Jacob LJ agreed with the conclusions and directions. Etherton LJ agreed with them.

1. Construction of section 32(2). The word only requires the information to be held solely by virtue of its being contained in the specified inquiry document. The grammar is ambiguous because the phrase concerning the purposes of the inquiry may relate either to placing the document in custody or to its later holding by the public authority.
2. Context and statutory scheme. Section 32(2) must be read consistently with section 32(1), which protects court documents notwithstanding the conclusion of proceedings. The Court therefore construed section 32(2) as continuing to protect inquiry documents after the inquiry has closed. The exemption applies to the whole class of qualifying documents, irrespective of their content, the harmlessness of disclosure, or the public interest in disclosure.
3. Supporting provisions. Section 63(1) confirms that the protection is not indefinite: information in a historical record ceases to be exempt by virtue of section 32 after thirty years. Section 18(3) of the Inquiries Act 2005 was treated as an indirect express amendment, disapplying section 32(2) for documents transferred to a public authority under the statutory inquiry rules. The need to construe exemptions restrictively cannot displace the meaning produced by the statutory context.
4. Judicial control of records. The Freedom of Information Act 2000 was not intended to circumvent the court’s power under CPR 5.4C and 5.4D to regulate disclosure of court records during and after proceedings.
5. Human rights issue. The recent Strasbourg decisions in Tarsasag a Szabadsagjogokert v Hungary and Kenedi v Hungary justified considering the late Article 10 argument. The tribunal was to examine matters including whether Article 10 was engaged, whether an information monopoly was required, and whether any interference was justified and proportionate, taking further evidence and argument as appropriate.

• Court of Appeal (Civil Division): referred the Article 10 issue to the tribunal, stayed the appeal, and directed that it return for further hearing after the tribunal’s report.
• Administrative Court: Calvert-Smith J dismissed the appeal from the Information Tribunal on 19 January 2010.
• Information Tribunal: on 14 June 2009 held that some material fell outside section 32(2), but that most of the requested material was exempt.
• Information Commissioner: Decision Notice dated 9 September 2008 rejected the complaint and found the requested information exempt under section 32(2)(a) and (b).