Kennedy v The Information Commissioner & Anor

The Court of Appeal considered the scope and duration of the exemption in section 32 of the Freedom of Information Act 2000, in particular whether information "held only by virtue of" being contained in documents placed with or created by a person conducting an inquiry (section 32(2)) remains exempt after the inquiry has concluded. The court found the statutory wording ambiguous on its face and examined a range of contextual indicators including the near-identical wording of section 32(1), the saving in section 63(1) concerning historical records, and the later Inquiries Act 2005 (section 18(3)).

Applying conventional principles of statutory construction the majority preferred the view that section 32(2) continued to afford protection after the conclusion of an inquiry, but recognised the human rights dimension under the Human Rights Act 1998. Because the compatibility question with Article 10 ECHR had not been litigated at earlier stages and required evidence, the Court referred the Human Rights Act point back to the tribunal for further factual and legal consideration and stayed the appeal pending that determination.

The appellant, a journalist, sought disclosure from the Charity Commission of material assembled during an inquiry into the Mariam Appeal. The Charity Commission treated the material as exempt under section 32 of the Freedom of Information Act 2000. The Information Commissioner and the First-tier Tribunal upheld the Commission's reliance on section 32(2) for most of the material. The High Court dismissed the appellant's judicial review challenge. Permission to appeal to the Court of Appeal was granted on one narrow ground concerning whether section 32(2) continues to operate after an inquiry closes or whether it expires at that point.

The principal legal issues were:

• whether the adverbial phrase "for the purposes of the inquiry or arbitration" qualifies the placing of documents with the person conducting the inquiry (so that protection continues after the inquiry), or instead qualifies the public authority's present purpose in holding the documents (so that protection ends on conclusion of the inquiry);
• the effect of other statutory provisions in the FoIA, notably section 63(1) and section 62(1), on the proper construction of section 32; and
• the impact of the Inquiries Act 2005, in particular section 18(3) and the Inquiry Rules 2006, on the interpretation of section 32(2).

The court analysed grammar, purposive construction, and legislative context. On ordinary construction the language was at least ambiguous but, read in context and having regard to section 63(1), the conventional approach favoured treating section 32(2) as a continuing exemption after an inquiry has closed. The Court noted that section 18(3) of the Inquiries Act 2005 effectively disapplies section 32(2) in particular circumstances, which supported the conclusion that Parliament intended section 32(2) to operate beyond the life of an inquiry unless displaced by later statute.

Because the appellant raised, belatedly, a compatibility argument under section 3 of the Human Rights Act 1998 invoking Article 10 ECHR (freedom of expression) and relevant Strasbourg jurisprudence, and because that argument had not been the subject of evidence before the tribunal or the High Court, the Court exercised its case management powers to refer the Human Rights compatibility question to the tribunal for further evidence and determination. The appeal was stayed pending the tribunal's report so that, if needed, the matter could be returned promptly to the Court of Appeal.

The Court of Appeal concluded that section 32(2) of the Freedom of Information Act 2000 is ambiguous but that, in context and having regard to section 63(1) and the Inquiries Act 2005, it should be construed as capable of operating after the conclusion of an inquiry. However, because the compatibility of that construction with Article 10 of the European Convention on Human Rights had not been properly litigated below and may require evidence, the Court did not finally determine the Convention issue. Instead it referred the Human Rights Act point to the First‑tier Tribunal for further evidence and determination, stayed the appeal, and ordered that the appeal be restored after the tribunal's report so the Court of Appeal could decide the remaining human rights issues.

Information Commissioner Decision Notice dated 9 September 2008 rejecting the complaint; First-tier Tribunal decision 14 June 2009 upholding most of the section 32(2) exemption; High Court (Calvert-Smith J) dismissed the appeal on 19 January 2010; permission to appeal initially refused on paper but renewed permission granted by Rimer L.J. for one ground (misconstruction of section 32(2)). Appeal to Court of Appeal [2011] EWCA Civ 367 resulted in referral to the tribunal on Human Rights Act compatibility with Article 10 and stay pending the tribunal's report.