Exempt information - Disclosure prohibited by or under enactment

Kennedy v Charity Commission: Court of Appeal, Civil Division: 20 March 2012

The claimant journalist made a request under the Freedom of Information Act 2000 (the 2000 act) for information in relation to inquiries which the defendant Charity Commission (the Commission) had made under section 8 of the Charities Act 1993. The Commission stated that it held information about the inquiry but that it was withholding the information on the ground, inter alia, that it was exempt from disclosure under section 32 of the 2000 act.

The Commission reviewed, but upheld, its decision. Consequently, the claimant made a complaint to the first intervening party, the Information Commissioner (the IC). The IC rejected the claimant's complaint and stated that all of the requested information was exempt by virtue of sections 32(2)(a) and (b) of the 2000 act. The claimant appealed to the Information Tribunal (the tribunal) which held that, although some of the material fell outside the section 32(2) exemptions, the bulk of the material fell within it. The claimant's appeal to the High Court was unsuccessful ([2010] All ER (D) 156 (Jan)).

The claimant appealed. He contended, inter alia, that if, on a conventional interpretation, the exemption contained in section 32(2) of the 2000 act continued after the inquiry had concluded, then article 10 of the European Convention on Human Rights was engaged and, pursuant to section 3 of the Human Rights Act 1998 (the 1998 act), section 32(2) of the 2000 Act had to be read and given effect so as to limit the exemption to the duration of the inquiry. That argument had not previously been raised. Consequently, the Court of Appeal remitted that matter to the tribunal and stayed the appeal until the tribunal had prepared its report. The Court of Appeal dismissed his other submissions in respect of section 32(2) of the 2000 act ([2011] All ER (D) 104 (May)) The tribunal found in favour of the claimant. The Commission cross-appealed against that decision. The claimant's appeal was restored.

The commission submitted, inter alia, that, pursuant to Sugar v British Broadcasting Corp ([2012] All ER (D) 108 (Feb)) (Sugar), article 10(1) of the Convention had never been engaged. The appeal would be dismissed. The cross-appeal would be allowed. Applying Sugar, article 10(1) of the Convention had had no application in the instant case (see [48], [55], [58], [64], [65] of the judgment). Sugar v British Broadcasting Corp [2012] All ER (D) 108 (Feb) followed; Leander v Sweden (Application 9248/81) (1987) 9 EHRR 433 considered; Gaskin v United Kingdom (Application 10454/83) [1989] 12 EHRR 36 considered; Guerra v Italy (Application 14967/89) [1998] 4 BHRC 63 considered; Roche v United Kingdom (Application No 32555/96) 20 BHRC 99 considered; Kenedi v Hungary (Application No 31475/05) 27 BHRC 335 considered; Tarsasag a Szabadsagjogokert v Hungary (Application No 37374/05) [2009] ECHR 37374/05 considered; Independent News & Media Ltd v A (by his litigation friend the Official Solicitor) [2010] 3 All ER 32 considered; British Broadcasting Corporation v Sugar (No 2) [2011] 1 All ER 101 considered.

Philip Coppel QC and Andrew Sharland (instructed by Bates, Wells and Braithwaite LLP) for the claimants; Jason Beer and Rachel Kamm (instructed by the Charity Commission) for the Commission; Ben Hooper (instructed by the Information Commissioner) for the Information Commissioner as first intervening party; Karen Steyn (instructed by the Treasury solicitor) for the Secretary of State for Justice as second intervening party.