Kennedy v The Charity Commission  UKSC 20
Judgment Handed Down: 26th March 2014
In Kennedy v Charity Commission, the Supreme Court considered the issue of whether s.32(2) Freedom of Information Act 2000 provides an exemption to the freedom of information regime which continues after the conclusion of a public inquiry.
The Freedom of Information Act 2000 allows a public right of access to information held by public authorities. However, s.32 creates exemptions for certain documents which mean that a freedom of information request can be denied. Section 32(2)(a) Freedom of Information Act 2000 creates an exemption for:
“any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration”.
Where an exemption to the Freedom of Information Act 2000 applies, disclosure would be governed by the Public Records Act 1958 whereby the information would remain secret for 30 years.
In Kennedy v Charity Commission, Mr Kennedy made a request to Charity Commission for disclosure under the Freedom of Information Act 2000 of documents regarding three inquiries which took place between 2003 and 2005. These inquiries were conducted by the Charity Commission into the Mariam Appeal which George Galloway had launched in relation to sanctions imposed after the First Gulf War on Iraq. Relying on the exemption discussed above in s.32(2), the Charity Commission refused the request.
The case was appealed to the Supreme Court on two main issues:
- As a matter of statutory construction, does the exemption in s.32(2) continue beyond the existence of a public inquiry?
- If so, is that absolute exemption compatible with Article 10 rights to receive information?
The decision of the Supreme Court was split with Lords Wilson and Carnwath giving dissenting judgments, which will be discussed further below. Lords Mance and Toulson gave the leading judgment, with whom Lord Sumption concurred.
On the first point of statutory construction, it was held that the natural interpretation of the wording of s.2(2) Freedom of Expression Act 2000 was that the exemption continues to apply after the end of the inquiry. The reasoning is that the words ‘for the purposes of the inquiry or arbitration’ were used by the drafters of the legislation to qualify the preceding clause and relate to the purpose for which the relevant documents were entrusted to the body or person in question – in this instance the Charity Commission. It does not relate to the purpose for which the body or person still holds the information at the time the freedom of information request was made. The key issue is why the information came to be in the Charity Commission’s custody, not why it remained in its custody.
Having determined that s.32(2) creates an absolute exemption beyond the life-span of an inquiry, their Lordships went on to consider whether this breached Article 10 ECHR rights to access information. On this point, it was held by the majority that s.32 merely created an exemption from the freedom of information disclosure regime but it was never intended to determine whether or not the information should be disclosed as that would still be subject to other governing rules at common law and in statute. Their Lordships were persuaded by the Court of Appeal dictum in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420,  QB 618 where it was stated that it would be wrong to infer that:
“Parliament intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be appropriate under the open justice principle”.
As there are other avenues technically open despite the s.32 exemptions, Article 10 ECHR is not breached.
A more human rights centred approach was taken by the dissenting Lords Wilson and Carnwath. The dissenting judgments would have allowed the appeal of Mr Kennedy on the basis that the right to receive information under Article 10 ECHR would be breached, and hence, s.32(2) Freedom of Information Act 2000 should be read down under s.3 Human Rights Act 1998.
This is an interesting case which involved statutory interpretation and human rights issue regarding freedom of information. There was an opportunity for the Supreme Court to follow the opinions of Lords Wilson and Carnworth and pursue a more liberal approach to freedom of information which less readily denies access to information held by public authorities. However, although the majority dismissed Mr Kennedy’s appeal, they did effectively highlight that, regardless of the Freedom of Information Act 2000, there are other ways available to gain access to such information due to the principle of open justice and the mechanism of judicial review.
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