COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE CALVERT SMITH
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE ETHERTON
| Dominic Kennedy
|- and -
|(1) The Information Commissioner
(2) The Charity Commission
The First Respondent was unrepresented and did not attend.
Jason Beer (instructed by Charity Commission Legal Services) for the 2nd Respondent
Hearing date: 18th November 2010
Crown Copyright ©
Lord Justice Ward:
(1) the objects of the Mariam Appeal were charitable and the Appeal should have been registered with the Charity Commission and placed on the Register of Charities;
(2) apart from public donations, the major funders of the Appeal were the United Arab Emirates, a donor from Saudi Arabia and a Jordanian businessman, Mr Fawaz Zureikat;
(3) two of the Appeal's original trustees received unauthorised benefits in the form of salary payments from the Appeal's funds;
(4) some of the activities of the Appeal were political in nature, in particular a campaign to end the sanctions against Iraq but these political activities were capable of being viewed as ancillary to the purposes of the Appeal in as much as ending sanctions might have an impact on enabling better treatment for sick children;
(5) it was not proportionate to pursue enquiries further; and
(6) while some of the payments made to Mr Galloway and the other trustees were made in breach of trust, the Charity Commission would not pursue the recovery of those sums because there was no bad faith.
"(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 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,
"(a) A blanket exemption from disclosure that carried on for thirty years after statutory inquiry has closed, regardless of content, regardless of the harmlessness of the disclosure, and regardless of the public interest in the disclosures; and
(b) exemption in respect of documents held by a public authority prior to the commencement of a statutory inquiry."
"(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,
(b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or
(c) any document created by—
(i) a court, or
(ii) a member of the administrative staff of a court,
for the purposes of proceedings in a particular cause or matter.
(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
(a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or
(b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.
(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of this section.
(4) In this section—
(a) "court" includes any tribunal or body exercising the judicial power of the State,
(b) "proceedings in a particular cause or matter" includes any inquest or post-mortem examination,
(c) "inquiry" means any inquiry or hearing held under any provision contained in, or made under, an enactment, and
(d) except in relation to Scotland, "arbitration" means any arbitration to which Part I of the Arbitration Act 1996 applies."
Does section 32(2) have a clear grammatical meaning?
"87. … the adverbial phrase "for the purposes of the inquiry or arbitration" qualifies the word "placed" in s. 32(2)(a) and not the word "held" in the preceding general words to s. 32(2). Subsequent events cannot alter the purpose for which a document was placed in somebody's custody. The words "held only by virtue of being contained in" simply provides a causal connection between the presence of the document in the public authority's records and the placement with the person conducting the inquiry. However we find that it does not limit the exemption. If that information was also received independently for some other source it may not be exempt."
A purposive construction
"The traditional culture of secrecy will only be broken down by giving people in the United Kingdom the legal right to know. The fundamental and vital change in the relationship between government and governed is at the heart of this white paper."
Similarly, Freedom of Information, Consultation on Draft Legislation presented to Parliament by the Secretary of State for the Home Department Cm 4355 May 1999 stated:
"2. Freedom of Information is an essential component of the Government's programme to modernise British politics. This programme of constitutional reform aims to involve people more closely in the decisions which affect their lives. Giving people greater access to information is essential to that aim. The effect of Freedom of Information legislation will be that, for the first time, everyone will have the right of access to information held by bodies across the public sector. This will radically transform the relationship between government and citizen."
"There is much force in Lord Marnoch's observation in the Inner House 2007 SC 231, para 32 that, as the whole purpose of 2002 Act is the release of information, it should be construed in as liberal a manner as possible. But that proposition must not be applied too widely, without regard to the way the Act was designed to operate in conjunction with 1988 Act [the Data Protection Act]. It is obvious that not all government can be completely open, and special consideration also had to be given to the release of personal information relating to individuals. So while the entitlement to information is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. The scope and nature of the various exemptions plays a key role within the Act's complex analytical framework."
"60. It is true that, according to settled case-law, the exceptions to access to documents fall to be interpreted and applied restrictively so as not to frustrate application of the general principle of giving the public the widest possible access to documents held by the institutions."
It is an approach, again favouring the appellant, that I shall have to bear in mind.
The arguments over sections 32(1) and 32(2)
"91. The distinction Mr Coppel makes between courts under s. 32(1) and authorities under s. 32(2) focuses unduly on the nature of the institution rather than the information and the reason it came into the authority's possession in the first place. In our view an inquiry has the same need to regulate publication of material which has been produced to it or created by it as a court. If a person is required to provide a document to a statutory inquiry, why should either his/her right to continue in confidentiality after its conclusion be governed by different exemptions from that which would apply if production had been to a court?"
Mr Coppel does not really have an answer to that hypothetical question.
"130. … the disclosure of pleadings lodged in pending court proceedings is presumed to undermine the protection of those proceedings, because of the fact that the pleadings constitute the basis on which the Court carries out its judicial activities, that is not the case where the proceedings in question have been closed by a decision of the Court.
131. In the latter case, there are no longer grounds for presuming that disclosure of the proceedings would undermine the judicial actives of the Court since those activities come to an end with the closure of the proceedings."
"20-035 The thinking behind the exemption is that the disclosure of information contained in court documents (which may include confidential information and which may have special restrictions upon its re-use) should be regulated by the procedure applying in the court or tribunal in question rather than by the general freedom of information regime."
It would be surprising if the rules of court could be subverted by a non-party seeking the very same documents from any public authority that happens to hold them after the proceedings have concluded. What Parliament intended to exclude under section 32 was a whole class of documents irrespective of their content and that applies as much to section 32(2) as it does to section 32(1).
The impact of section 63(1)
"For the purposes of this Part, a record becomes a "historical record" at the end of the period of thirty years beginning with the year following that in which it was created."
Section 63 then deals with "removal of exemptions: historical records generally". It provides:
"63(1) Information contained in a historical record cannot be exempt information by virtue of section 28, 30(1), 32, 33, 35, 36, 37(1)(a),42 or 43."
The impact of section 18(3) of the Inquiries Act 2005
"18(3) Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a public authority."
Section 41 provides for rules to be made as follows:
"41 (1)The appropriate authority may make rules dealing with—
(b) the return or keeping, after the end of an inquiry, of documents given to or created by the inquiry; …"
"18(1) Subject to the legal rights of any person—
(b) at the end of the inquiry, the chairman must transfer custody of the inquiry record to a department of Her Majesty's Government in the United Kingdom or to the appropriate public record office, as the Minister directs.
(2) In this rule, the "appropriate public records office" means the National Archives, the Keeper of the Records of Scotland or the Public Record Office of Northern Ireland."
"89. We consider Mr Beer's submissions on ss. 18(3) and 41(1) of the 2005 Act … are formidable. Whilst the view of Parliament or the draughtsman as to the interpretation of an earlier provision as demonstrated by the enactment of a later provision is not definitive we consider it gives substantial weight to the interpretation we are adopting in this case. In our view Mr Coppel's counter-arguments do not adequately overcome this hurdle."
"1(1) A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—
(a) particular events have caused, or are capable of causing, public concern, or
(b) there is public concern that particular events may have occurred."
In other words, the Inquiries Act is intended, as the explanatory notes to it assert, "to provide a comprehensive statutory framework for inquiries set up by Ministers to look into matters of public concern."
"It is, as it seems to me, clear from this that it is not enough to show simply that there are two arguable constructions [of the earlier legislation]. One has to go further and show that they are both equally tenable, and that there are no indications in the Act under construction favouring one rather than the other."
My conclusion on the ordinary meaning of section 32(2)
(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  ECHR 618 decided on 24th March or 14th April 2009 and apparently finalised only on 14th July 2009 and Kenedi v Hungary  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 L.J., can be assuaged.
Lord Justice Jacob:
Lord Justice Etherton: