Power of public bodies to refuse access to information under freedom of information laws not “all-embracing”, rules Supreme Court

The Court ruled (92-page / 625KB PDF) that the FOIA is not “all-embracing” and that a right of a public body to withhold information under it “...is no answer to any power which the holder of an inquiry may have to disclose, or which the court may have to order disclosure in respect of, inquiry documents.” It reasoned that public bodies come under a common law duty to consider whether to disclose information even where the FOIA otherwise states that the information can be withheld.

The Court was ruling in a case where Times newspaper journalist Dominic Kennedy is seeking access to information about three inquiries the Charity Commission conducted into a charity appeal launched by politician George Galloway in 1998.

Kennedy had challenged whether an absolute exemption to disclosure that applies under the Freedom of Information Act (FOIA) ran contrary to his right to information under the European Convention on Human Rights (ECHR).

The exemption, contained under Section 32 of FOIA, states, in part, that information does not need to be disclosed if it is "held only by virtue of being contained in any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration."

The Supreme Court ruled that FOIA allows public bodies to withhold information from inquiries, such as those conducted by the Charity Commission, even after those inquiries have ended until such time as the information becomes an historical record, which means after 30 years at present and after 20 years in future. There is no absolute exemption protecting against the disclosure of historical records under the Act.

However, the Court said that Kennedy may have a right to the Charity Commission inquiry documents through other legal channels. The Charity Commission is obliged, under the Charities Act, to consider whether releasing the information is necessary to serve interests in the public trust in, and accountability of, charities.

The Court confirmed in this context that public bodies are under a common law duty to disclose information that is in the public interest unless there are good reasons not to. It said courts would be likely to apply a high standard if asked to assess whether the withholding of information in the public interest is justified as part of any judicial review.

"I do not see the absence of a prior statement by the courts that in general the principle of openness should apply, subject to any statutory provisions and subject to any countervailing reasons, as a convincing reason for not saying so now," Lord Toulson said in the judgment. "Principles of natural justice have been developed by the courts as a matter of common law and do not depend on being contained in a statutory code. As with natural justice, so with open justice."

"The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest. It is not therefore necessary to look for a particular statutory requirement of disclosure. Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry," the judge added.

The Supreme Court said that the Charity Commission should disclose the information requested by Kennedy.

"If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed," Lord Mance said.

"Kennedy has shown that important questions arise from the inquiries and reports relating not only to the subject matter and outcome of the inquiries, but also to the Charity Commission’s conduct of the inquiries," he said. "The proper functioning and regulation of charities is a matter of great public importance and legitimate interest. The public interest in openness in relation to these questions is demonstrated positively by the objectives, the functions and, importantly, the duties given to and imposed on the Charity Commission under the Charities Act."

"The present request for further disclosure is made by a journalist in the light of the powerful public interest in the subject matter to enable there to be appropriate public scrutiny and awareness of the adequacy of the functioning and regulation of a particular charity. It is in these circumstances a request to which the Charity Commission should in my opinion accede in the public interest, except so far as the public interest in disclosure is demonstrably outweighed by any countervailing arguments that may be advanced," Lord Mance added.