Kennedy v The Charity Commission

This appeal concerned whether documents created for or placed in the custody of the Charity Commission in the course of its statutory inquiries fell within the absolute exemption in section 32(2) of the Freedom of Information Act 2000 and whether that provision must be read down under section 3 of the Human Rights Act 1998 to give effect to any positive article 10 rights of the press to receive information. The majority held that, as a matter of ordinary construction, section 32(2) provides an absolute exemption which continues after an inquiry and that the proper route for challenging non-disclosure is outside FOIA — by reference to the Charity Commission's statutory objectives, functions and duties under the Charities Act 1993 and by the common law (and, where engaged, by Convention-based remedies) rather than by remodelling section 32. The court also held that section 32 does not of itself render the United Kingdom incompatible with article 10; if article 10 rights are engaged they should be vindicated through the Charities Act and common law (and, where appropriate, by section 3 HRA or a declaration of incompatibility), not by judicially rewriting FOIA.

Background and facts

The Times journalist Mr Kennedy sought disclosure under the Freedom of Information Act 2000 of documents held or created by the Charity Commission in relation to three inquiries into the Mariam Appeal (founded by Mr George Galloway). The Commission refused, relying principally on the absolute exemption in section 32(2) FOIA (documents placed in custody of, or created for, an inquiry). Mr Kennedy argued that section 32(2) should be read so that the absolute exemption ends at the close of the inquiry; alternatively that article 10 ECHR imposes a positive duty to disclose material of genuine public interest so section 32(2) must be read down under section 3 HRA, or that a declaration of incompatibility should be made.

Procedural posture and path to this court

• Application to the Charity Commission (2007)
• Considered by Information Commissioner and First-tier Tribunal (the First-tier Tribunal later produced a report on article 10 at the Court of Appeal’s request)
• Court of Appeal: [2011] EWCA Civ 367; [2012] EWCA Civ 317 — held section 32 applied (and remitted some issues)
• On further appeals the case reached the Supreme Court: [2014] UKSC 20.

Issues framed

• Whether section 32(2) FOIA is to be construed as an absolute exemption continuing after the conclusion of an inquiry, or should be read down so the exemption ends when the inquiry ends.
• Whether article 10 ECHR (freedom to receive and impart information) requires section 32(2) to be read down under section 3 HRA, or otherwise gives rise to a positive duty of disclosure by public authorities to journalists or "public watchdogs".
• Whether disclosure obligations, if any, are to be vindicated under FOIA, under the Charities Act 1993 and common law (including judicial review), or by reference to article 10 and the HRA.

Court’s reasoning

• Construction: The majority (Lord Mance, Lord Toulson, Lord Sumption and others) read section 32(2) in its ordinary terms: the qualifying phrase "for the purposes of the inquiry" attaches to documents placed in custody or created for those purposes, producing an absolute exemption that endures (subject to the historical-records rule) and does not automatically cease on the inquiry's close.
• Relationship to other law: Section 32 was intended to take court, arbitration and inquiry material outside the FOIA scheme so that disclosure questions would be addressed through the specific statutory and common-law regimes governing those bodies. Section 78 FOIA preserves powers to disclose outside FOIA.
• Article 10 and HRA section 3: The majority rejected the contention that section 32(2) must be read down so as to cease at the end of the inquiry to give effect to article 10. They held that, if article 10 rights are engaged, the Charities Act and common law are the proper vehicle for vindication and can be read compatibly with article 10; at most a declaration of incompatibility could be contemplated where domestic law failed to provide protection.
• Open justice/common law route: The court emphasised that the Charities Act confers objectives, duties and functions (including dissemination and transparency) on the Charity Commission that, together with common-law principles of openness, provide scope for judicial review and other remedies if disclosure is refused; courts are able to undertake appropriate balancing exercises.
• Strasbourg jurisprudence: The court took into account recent ECtHR decisions. Some section judgments (e.g. Társaság and subsequent decisions) suggest a broadening in the Court’s approach to article 10 for "watchdog" applicants. The majority considered that article 10 in Strasbourg had not yet displaced the domestic statutory scheme and that any rights arising under article 10 would generally be satisfied under domestic law.

Practical outcome

The appeal was dismissed by the majority. Two members (Lords Wilson and Carnwath) would have allowed the appeal and read section 32(2) down under section 3 HRA in the circumstances of this case, treating the Strasbourg trends as decisive; the majority preferred to preserve the textual construction of section 32 and to direct claimants to the Charities Act/common law remedies (or, if necessary, to seek a declaration under section 4 HRA).

Appeal dismissed. The Supreme Court by majority held that section 32(2) of FOIA is properly construed as an absolute exemption covering documents placed in the custody of, or created for, an inquiry and continuing beyond the close of the inquiry (subject to the historical-record rule). The court held that article 10 does not require judicial re-writing of section 32: where Convention rights are engaged any disclosure obligations are to be addressed through the Charities Act 1993, the common law and the Human Rights Act remedies rather than by remodelling FOIA.

On appeal from decisions below including the Court of Appeal ([2011] EWCA Civ 367; [2012] EWCA Civ 317). The matter had earlier been addressed by the Information Commissioner and the First-tier Tribunal, which produced a report for the Court of Appeal on article 10 issues.