Kennedy v IC - round 1

[dls]

Kennedy -v- The Information Commissioner and Another - CA - 12-May-2011 - Ward, Jacob, Etherton LJJ (Bailii, [2011] EWCA Civ 367, [2011] EMLR 24) - Information - Charity - Human Rights
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.
Statutes:
Freedom of Information Act 2000 s. 1 s. 32
Inquiry Rules 2006
Inquiries Act 2005 s. 18(3)
European Convention on Human Rights s. 2 s. 10

Cases Cited:
Kennedy -v- Information Commissioner IT 14-6-2009 (Bailii, [2009] UKIT EA_2008_0083) - At IT
Kennedy -v- Information Commissioner Admn 19-1-2010 (Bailii, [2010] EWHC 475 (Admin), [2010] WLR (D) 6, WLRD) - Appeal from
Turco -v- Council (Law Governing The Institutions) ECFI 23-11-2004 (T-84/03, Bailii, [2004] EUECJ T-84/03, [2004] ECR II-4061)
Common Services Agency -v- Scottish Information Commissioner HL 9-7-2008 (Bailii, [2008] UKHL 47, Times 14-Jul-08, HL, (2008) 103 BMLR 170, 2008 SC (HL) 184, [2008] 4 All ER 851, [2008] 1 WLR 1550, 2008 SCLR 672, 2008 SLT 901, 2008 GWD 30-465)
Sweden -v- API & Commission (Law Governing The Institutions) ECJ 21-9-2010 (Bailii, [2010] EUECJ C-514/07, C-514/07)
Fetherstonhaugh (formerly Finch) -v- Inland Revenue Commissioners CA 1985 ([1985] 1 Ch 1, [1984] STC 261)
Kenedi -v- Hungary ECHR 26-5-2009 (31475/05, Bailii, [2009] ECHR 786, (2009) BHRC 335)
Beaufort Developments (NI) Limited -v- Gilbert-Ash NI Limited and Others HL 26-2-1998 (Gazette 17-Jun-98, Times 08-Jun-98, House of Lords, Bailii, [1998] 2 WLR 860, [1998] UKHL 19, [1999] 1 AC 266, [1998] 2 All ER 778)
Tarsasag A Szabadsagjogokert -v- Hungary ECHR 14-4-2009 (Bailii, [2009] ECHR 618, 37374/05, (2011) 53 EHRR 3)

Cited by:
Kennedy -v- Charity Commission CA 20-3-2012 (Bailii, [2012] EWCA Civ 317) - See Also
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