Kennedy v The Information Commissioner and Another: CA 12 May 2011

The claimant, a journalist, sought further information from the Charity Commission after the release of three investigations into the ‘Mariam Appeal’ and questions about the source and use of its funds. The Commission replied that it was exempt under section 32. The claimant appealed against the finding of a blanket exemption, and continued after completion of the inquiry for which it had been obtained. Did the section refer to the purpose of obtaining the document, or that for which it was held (but no longer).
Held: The appeal was allowed, and the matter remitted to the Tribunal to consider the Human Rights arguments now raised. The grammar of the section was ambiguous or favoured the claimant. Nevertheless, the Act included provision for the release of documents after thirty years, which provision would be largely unnecessary if the claimant’s argument applied: ‘The controversy is put to rest when reference is made to section 18(3) of the Inquiries Act 2005 which cannot be construed otherwise than as taking effect as an amendment of section 32(2) of FoIA. There would have been no need to pass it otherwise. The need to construe the exemptions restrictively cannot displace the true meaning. Thus, for the reasons largely given by Mr Beer [for the respondent] whose submissions I prefer on these points of the conventional approach to construction, I would have dismissed the appeal.’
However the appellant now raised a persuasive argument under the Convention, and ‘(1) Although the point was not argued before the appeal tribunal there is an understandable reason for that omission. Both judgments of the Strasbourg Court upon which Mr Coppel relies were only delivered at or about the time of the hearing before the tribunal and were not reported until later. These cases are Tarsasag a Szabadsagjogokert v Hungary [2009] ECHR 618 decided on 24th March or 14th April 2009 and apparently finalised only on 14th July 2009 and Kenedi v Hungary [2009] ECHR 78, (2009) BHRC 335 which was dated 26th May 2009. Although the arguments is late, it is not so late that we should ignore these very recent and potentially important new developments of Strasbourg jurisprudence.
(2) The present case is moreover an ideal one for the Article 10 point to be tested. Important and difficult questions are raised in the counter-argument of Mr Beer. If the appellant has to rely on his status as a journalist to bring Article 10 into play, should the Court be reading section 32(2) down when it would not be obliged to do so were the applicant an ordinary citizen not able as the public watchdog to invoke Article 10? Mr Beer submits that the FoIA is ‘applicant and motive blind’. Another important question is whether the Charity Commission hold an information monopoly which may be the necessary pre-condition to establish before Article 10 can be engaged: see Tarsasag. If Article 10 is engaged and interfered with is such interference justified and proportionate? All these matters may require further evidence.
(3) It is unlikely, at least so far as concerns the Charity Commission, that a better case for analysing the Convention point will arise again in the near future. If, as we are told, the Charity Commission are considering changing their rules to reflect more accurately procedures adopted by the courts for disclosure of information, then it would be helpful they did so with the implications of the Human Rights Act known in advance.
(4) The matters which the appellant seeks to investigate are obviously matters of general public interest and his investigation may be totally thwarted if his case fails as it would if we refused to countenance the Human Rights argument.
(5) If section 3 of the Human Rights Act requires the reading down of section 32(2) then my hesitations about the proper construction to place upon that subsection, and the more firmly expressed disenchantment of Jacob LJ, can be assuaged. ‘
Ward LJ, with whom Etherton J agreed, considered that section 32(1) and section 63(1) of the FOIA and section 18(3) of the Inquiries Act 2005 supported that conclusion. Jacob LJ rested his conclusion solely on the basis of section 32 itself.

Ward, Jacob, Etherton LJJ
[2011] EWCA Civ 367, [2011] EMLR 24
Freedom of Information Act 2000 1 32, Inquiry Rules 2006, Inquiries Act 2005 18(3), European Convention on Human Rights 2 10
England and Wales
At ITKennedy v Information Commissioner IT 14-Jun-2009
The claimant sought release of documents placed with the Charity Commission in connection with investigations into a charity.
Held: With certain exceptions, the applicaion failed: ‘once a public authority places documents it held prior to an . .
Appeal fromKennedy v Information Commissioner Admn 19-Jan-2010
The claimant journalist had made a freedom of information request to the Charity Commission as to its investigations of a charity under section 8 of the 1993 Act. The Commission claimed absolute exemption under section 32(2). He now appealed against . .
CitedTurco v Council (Law Governing The Institutions) ECFI 23-Nov-2004
ECJ Openness – Public access to Council documents – Partial refusal of access – Regulation (EC) No 1049/2001 – Exceptions. . .
CitedCommon Services Agency v Scottish Information Commissioner HL 9-Jul-2008
An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the . .
CitedSweden v API and Commission (Law Governing The Institutions) ECJ 21-Sep-2010
ECJ (Grand Chamber) Appeals – Right of access to documents of the institutions – Regulation (EC) No 1049/2001 – Second and third indents of Article 4(2) – Pleadings lodged by the Commission in proceedings before . .
CitedFetherstonhaugh (formerly Finch) v Inland Revenue Commissioners CA 1985
. .
CitedKenedi v Hungary ECHR 26-May-2009
(Second Chamber) The applicant historian specialised in the analysis and recording of the secret services of dictatorships, comparative studies of the political police forces of totalitarian regimes and the functioning of Soviet-type States. The . .
CitedBeaufort Developments (NI) Limited v Gilbert-Ash NI Limited and Others HL 26-Feb-1998
The contractual ability given to an arbitrator under standard JCT terms did not oust the court from assessing and prejudging the acts of the architect under a building contract. As to the means for interpreting documents, Lord Hoffmann said: ‘I . .
CitedTarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .
CitedKennedy v Information Commissioner Admn 19-Jan-2010
The claimant journalist had made a freedom of information request to the Charity Commission as to its investigations of a charity under section 8 of the 1993 Act. The Commission claimed absolute exemption under section 32(2). He now appealed against . .

Cited by:
See AlsoKennedy v Charity Commission CA 20-Mar-2012
The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was . .
Appeal fromKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .

Lists of cited by and citing cases may be incomplete.

Information, Charity, Human Rights

Updated: 02 November 2021; Ref: scu.439736