Kennedy v Information Commissioners
| Jurisdiction | England & Wales |
| Judgment Date | 19 January 2010 |
| Neutral Citation | [2010] EWHC 475 (Admin) |
| Docket Number | CO/7463/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 January 2010 |
[2010] EWHC 475 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Calvert Smith
CO/7463/2009
Mr Philip Coppel QC appeared on behalf of the Appellant
The First Respondent was not represented, did not attend
Mr Jason Beer appeared on behalf of the Second Respondent
(As approved)
This is an appeal on a point of law from a decision of the Information Tribunal under Section 59 of the Freedom of Information Act 2000. The case was listed as The Times Newspapers v Information Commissioners but should have been listed as Dominic Kennedy v The Information Commissioner and the Charity Commission.
Since this appeal concerns the law and not the facts or the merits of the underlying application by the appellant for information, a brief summary is all that is needed.
Mr George Galloway, who has been an MP since 1987, founded in 1998 the “Mariam Appeal”. Although the objects of the Mariam Appeal were stated to be charitable objects it was not registered as a charity. Its known income was nearly £1.5 million until its closure in 2003.
The appellant Dominic Kennedy is a journalist on The Times newspaper. In 2003 he began to investigate the Mariam Appeal. Following articles in The Times newspaper in which allegations were made in respect of the Mariam Appeal, the Charity Commission opened an evaluation, following which it instituted the first of three inquiries under Section 8 of the Charities Act 1993 into the Mariam Appeal. The result of the first two inquiries were published in June 2004 in a Statement of Results of the Inquiry (SORI).
Following further information from other sources and further pressure from the appellant himself, a third statutory inquiry was instituted by the Charity Commission in December 2005. This inquiry reported its conclusions on 8 June 2007. Later the same day the appellant made a request for information to the Charity Commission under Section 1 (1) of the Freedom of Information Act 2000. On 4 July 2007 the Charity Commission refused his request, citing, inter alia, the exemption from disclosure under Section 32 of the Freedom of Information Act.
On the same day and subsequently the appellant asked the Charity Commission to review that initial decision. By a decision dated 25 July 2007, the Charity Commission upheld its refusal, stating that in its opinion the absolute exemption contained in Section 32 (2) of the Freedom of Information Act applied to the information sought.
On 1 November 2007 the appellant complained to the Information Commissioner by letter. On 5 August 2008 the Information Commissioner informed Mr Kennedy that his complaint had been rejected on the basis of the exemptions in Section 32 (2) (a) and (b) of the Freedom of Information Act.
On 7 October 2008 the appellant appealed against that decision to the Information Tribunal. On 24 November 2008 the Charity Commissioner was joined to that appeal as an interested party. After a hearing, which was partly open and partly closed, during which witnesses gave evidence and were cross-examined, the tribunal ruled on 14 June 2009. It held that some of material held by the Charity Commission fell outside the Section 32 (2) exemption but that the bulk of the material sought fell within it. In relation to the material falling within s.32(2), the Tribunal did not consider the other exemptions claimed by the Charity Commission.
The appellant appeals to this court against that finding, accepting of course that even if he is successful, it may be that some or all of the information falling within the terms of the request might be held exempt under other Freedom of Information Act exemptions relied upon by the Charity Commission. As just noted, the Tribunal did not rule upon the applicability of those exemptions in relation to the information held exempt under s.32(2).
All were agreed that the three inquiries were inquiries which fell into the category set out in Section 32 (2) of the Freedom of Information Act.
The Information Commissioner, who was represented at the tribunal and supported the submission of the Charity Commission at that hearing, has not appeared at this appeal but indicated that he is content for the Charity Commission (the second respondent) to present the arguments that it presented before the tribunal and which he supports.
The statutory framework under which the tribunal and this court are operating can be summarised as follows. Section 8 of the Charities Act 1993 (“the 1993 Act”) is headed ‘General Power to Institute Inquiries’. Section 8 (1):
“(1) The [Commission] may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes, but no such inquiry shall extend to any exempt charity”—
“(2) The [Commission] may either conduct such an inquiry [itself] or appoint a person to conduct it and make a report to [the Commission].
(3) For the purposes of any such inquiry the [Commission], or a person appointed by [the Commission] to conduct it, may direct any person (subject to the provisions of this section)—
(a) to furnish accounts and statements in writing with respect to any matter in question at the inquiry, being a matter on which he has or can reasonably obtain information, or to return answers in writing to any questions or inquiries addressed to him on any such matter, and to verify any such accounts, statements or answers by statutory declaration;
(b) to furnish copies of documents in his custody or under his control which relate to any matter in question at the inquiry, and to verify any such copies by statutory declaration;
(c) to attend at a specified time and place and give evidence or produce any such documents.
(4) For the purposes of any such inquiry evidence may be taken on oath, and the person conducting the inquiry may for that purpose administer oaths, or may instead of administering an oath require the person examined to make and subscribe a declaration of the truth of the matters about which he is examined.
(5) …..
(6) Where an inquiry has been held under this section, the [Commission] may either—
(a) cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as [the Commission] thinks fit, to be printed and published, or
(b) publish any such report or statement in some other way which is calculated in [the Commission's] opinion to bring it to the attention of persons who may wish to make representations to [the Commission] about the action to be taken.”
Sub-sections (5) and (7) are irrelevant for these purposes.
Section 1 of the Freedom of Information Act 2000, so far as is relevant [reads]:
“(1) Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Sub-section (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”
Section 2 reads:
“(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information
section 1(1)(a) does not apply.
(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption—
…..
(c) section 32,
…..”
The definition section—Section 84—defines “information” (subject to sections 51 (8) and 75 (2)) as meaning “information recorded in any form”. “Exempt information” is defined as “information which is exempt information by virtue of any provision of Part II”.
Section 57 of the Act deals with appeals:
“(1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.”
Section 58:
“(1) If on an appeal under section 57 the Tribunal considers—
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”
Section 59 reads:
“Any party to an appeal to the Tribunal under section 57 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that...
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