Kennedy, the Commission and FOI: A Victory for UK Common Law?

On the 25 March, the Supreme Court handed down its decision in Kennedy v the Charity Commission, regarding the application of one of the exemptions in the Freedom of Information Act (FOI) to material collected and created by the Commission in the course of a statutory Inquiry.

Some commentators were adamant that if the appeal had been successful, charities would have to rethink the information that they provide to the Commission for fear of that information being made public under FOI.  As this author stated in a previous article on the subject, even if this appeal had succeeded, there were a number of other exemptions which would potentially apply to the information, and so it was highly unlikely that information collected and created in the course of an Inquiry would suddenly have to be released, when the Commission can legitimately withhold that same information in an operational compliance case where the statutory powers have not been invoked.  The difference is essentially whether a public interest test has to be applied  to the release of the information, but this requires a careful balancing of competing interests, and is something that the Commission is used to carrying out.

In fact, the appeal was not successful, and the court found in favour of the Commission, but with an important caveat.  On the one hand, the Court did find that the exemption in section 32 (which exempts information created or collected by the Commission in the course of a statutory Inquiry) is engaged beyond the closure of the Inquiry itself, and that the right in Article 10 of the European Convention on Human Rights to “receive and impart information and ideas without interference by public authority” is not incompatible with this.  On the other hand the Court made it clear that the Commission should be prepared to consider requests for information that are made outside of the FOI regime, and in line with the Commission’s statutory duties.  This does give individuals, and particularly journalists, another means of obtaining information, but whether this will actually increase the amount of information that is released remains to be seen.

Background

Dominic Kennedy, a journalist with the Times, had made a request for certain information from the Commission under the FOI regime, which related to the Inquiries into the Mariam appeal.  The Commission had refused to release the information requested on the grounds that it fell within the exemption in section 32 (2), which covers information that the Commission has collected and made in the course of carrying out a statutory Inquiry.

Mr Kennedy appealed the decision, and the case reached the Supreme Court in October 2013, where the issue before the court was whether the exemption in section 32 (2) continues after the end of the Inquiry, and if it does, whether the application of Article 10 means that there is a right to receive information from the State, which is incompatible with section 32.

The Decision

Lord Mance, in his leading judgment, was keen to point out that section 32 operates to bring certain information outside the scope of FOI.  It does not follow that information which is exempt under FOI will or can never be released whist that exemption applies.  Section 78 of the FOI Act makes this clear, by stating that the Act does not prohibit disclosure of information outside of the provisions of FOI.

Therefore, although the information requested by Mr Kennedy was not available under FOI, that is not the end of the matter.  Mr Kennedy was (and is) entitled to make an application under common law for the information, on the basis that release would be in line with the Commission’s statutory duties, and its general duties as a public body.  This would then require the Commission to make a further analysis of whether the information should be released, which would be appealable by Judicial Review.

This additional “line of attack” meant that even if section 32 itself were incompatible with Article 10, the existence of another means of obtaining the information means that any rights an individual might have under Article 10 were not breached.

What does this mean for charities?

The short answer is – not much!  A charity’s duty to engage with the regulator remains unchanged, and the Commission’s ability to use the exemption in section 32 for FOI requests remains unchanged.

What may change, is that the Commission will see an increase in requests for information outside of the FOI regime – journalists in particular are likely to now make requests both under FOI, and under the Commission’s statutory objectives and functions.  Although impossible to predict how the Commission will handle this, I would be surprised if there was a rush of information being released under the common law route.  In paragraph 50 of the judgment, Lord Mance set out the arguments against releasing the specific information requested by Mr Kennedy, and these arguments will apply more generally to much of what the Commission holds about charities.  Because the Commission relies heavily on the submission of information from individuals and charities themselves, there is a very strong (and judicially accepted) argument that the Commission needs to maintain some form of confidentiality to ensure that it continues to receive the same level of engagement, and can then continue to effectively  regulate.  It would take a significant level of public interest to tip the balance in favour of disclosure, and one which is unlikely to be present in the vast majority of cases.  Whether or not Mr Kennedy has such a case remains to be seen, but the average charity is unlikely to have anything to fear.