Kennedy v The Charity Commission

Section 32 of the Freedom of Information Act 2000 creates an absolute exemption determined by the historical purpose for which an inquiry document was placed in custody or created. The exemption continues after the inquiry ends until the information becomes part of a historical record. It removes the information from the Act’s disclosure regime; it does not prohibit disclosure under other statutory powers or the common law.

A public authority responsible for a statutory inquiry must exercise its disclosure powers in the public interest. Information of genuine public interest sought for serious journalistic purposes attracts a strong prima facie case for disclosure, subject to persuasive countervailing considerations. A refusal is amenable to context-sensitive judicial review. Section 32 cannot be read down under the Human Rights Act 1998 contrary to the statutory scheme.

Mr Kennedy, a journalist, requested documents relating to three Charity Commission inquiries into the Mariam Appeal. He sought information about the conduct and conclusions of the inquiries, including the Commission’s treatment of possible misconduct and its dealings with third parties.

The Commission relied on the absolute exemption in section 32(2) of the Freedom of Information Act 2000. In its first decision, the Court of Appeal held that the exemption survived the end of an inquiry but remitted the article 10 issue for a tribunal report: [2011] EWCA Civ 367. Following that report and the Supreme Court’s decision in another case, the Court of Appeal dismissed the claim: [2012] EWCA Civ 317.

The central issues were whether section 32(2) continued to apply after an inquiry ended, whether it could be read down under section 3 of the Human Rights Act 1998, and whether article 10 required a declaration of incompatibility.

1. Disposition. By a majority of five to two, the Supreme Court dismissed the appeal. Lord Mance, Lord Toulson and Lord Sumption gave judgments supporting dismissal. Lord Neuberger and Lord Clarke agreed with them. Lord Wilson and Lord Carnwath dissented.

2. Construction of section 32. The words identifying documents placed in custody or created “for the purposes” of an inquiry describe the historical purpose for which the documents entered the inquiry’s possession. They do not describe the purpose for which the information is held when a later request is made. Section 32 therefore continues to confer an absolute exemption after the inquiry ends, until the information becomes part of a historical record. Sections 62 and 63 of the Freedom of Information Act 2000 reinforced that conclusion.

3. No reading down. Section 3 of the Human Rights Act 1998 did not permit section 32 to be rewritten so that its exemption ended with the inquiry or became a qualified exemption. Either course would contradict the structure and grain of the legislation. There was no basis for a declaration of incompatibility because section 32 removed the information only from the Act’s regime and did not prohibit disclosure through other legal powers.

4. Disclosure outside the Act. Section 78 preserved the Charity Commission’s powers to disclose information. Its objectives, functions and duties under the Charities Act 1993, read with the common law principle of openness, required it to consider disclosure in the public interest. The Act’s emphasis on public confidence, accountability, dissemination of information and transparent regulation was not displaced by the specific power to publish inquiry reports.

5. Public-interest balance and review. Lord Mance and Lord Toulson concluded that information of genuine public interest sought for important journalistic purposes gave rise to a strong prima facie case for disclosure. The Commission could withhold information where persuasive countervailing considerations, including confidentiality, national security, international affairs or the protection of voluntary cooperation, outweighed disclosure. A refusal was amenable to judicial review. The reviewing court could inspect the information and make its own context-sensitive assessment while giving appropriate weight to the Commission’s reasons.

6. Article 10. The majority considered that the more authoritative Strasbourg jurisprudence did not establish a general article 10 right to obtain information from an unwilling public authority. That issue was ultimately academic because domestic law provided a route no less favourable than the asserted Convention right. Lord Wilson and Lord Carnwath dissented. They considered that recent Strasbourg decisions recognised a right of access for public watchdogs in appropriate cases and would have read section 32(2) down so that it ceased to apply when the inquiries ended.

1. United Kingdom Supreme Court: The appeal was dismissed by a majority of five to two: [2014] UKSC 20.
2. Court of Appeal, second decision: After receiving the tribunal’s report on article 10, the court dismissed Mr Kennedy’s claim: [2012] EWCA Civ 317.
3. Court of Appeal, first decision: The court held that section 32(2) continued after the inquiries ended and remitted the article 10 issue for a tribunal report: [2011] EWCA Civ 367, [2012] 1 WLR 3524.
4. First-tier Tribunal: On remittal, the tribunal concluded that section 32(2) should be read down so that the exemption ended when the inquiry ended. It did not decide whether the requested information should ultimately be disclosed.