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Human Rights law forces disclosure of absolutely exempt information

The Information Tribunal ruled last month that freedom of information laws were applied in contravention of the European Convention on Human Rights. It is a decision that could have wide consequences for information rights in the UK.

In June the Court of Appeal ruled that documents from a public inquiry could be withheld from citizens under section 32 of the Freedom of Information Act even once the inquiry was finished.

But the premier Information tribunal has found this violates EU law after Lord Justice Ward referred his own ruling downwards to decide whether it would go against the 1998 Human Rights Act, which European rights to be enforced in the UK.

This new ruling in Kennedy v IC and Charity Commission [2011] EWCA Civ 367 could call other FoIA exemptions into question, according to the Tribunal’s report.

The First Tier Tribunal (Information Rights) was ordered to consider whether courts had an obligation to interpret the FoIA so that it was consistent with EU law, a process known as ‘reading down’.

Times journalist Dominic Kennedy, seeking documents related to the Charity Commission’s 2007 into George Gallaway’s ‘Mariam Appeal’, had been rebuffed under section 32 of the FoIA. The exemption allows public bodies to block requests for any document held or created “by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration”.

In his appeal Kennedy argued that this only applied while the inquiry was ongoing.

Lord Justice Ward reluctantly upheld the Tribunal’s previous ruling, which said the wording allowed such information to be blocked up to the thirty year limit allowed under FOIA section 63.

But a last-minute submission from Kennedy forced the court to consider its ruling in the light of new EU case law – causing Lord Justice Ward to refer his initial judgment to the Tribunal.

At stake was Article 10 of the European Convention on Human Rights, which gives the right “to receive and impart information and ideas without interference by public authorities.”

For Ward, this was an ideal test case for whether Article 10 should affect FoIA exemptions – a question he said it was in the public interest to settle.

Because section 32 is an absolute exemption, it does not consider the content of documents, the harmlessness of their disclosure or any public interest in their contents. The Court of Appeal’s ruling would mean any information used as part of an inquiry would fall under the exemption regardless of these factors.

Philip Coppel QC, representing Kennedy, said the Court of Appeals’ interpretation would not only restrict Kennedy’s Article 10 rights but destroy them.

Tribunal judge John Angel concluded that “there is no justification for…interfering with Mr Kennedy’s Article 10 rights in the circumstances of this case.”

Angel cited a European case, Bergens Tidente v Norway, in which the EU Court of Human Rights recognized press and other media as having a special function as ‘public watchdogs’. Judges in that case recommended courts exercise “careful scrutiny of the proportionality of the measures” taken by authorities where they might discourage press inquiry into subjects of public interest.

According to his report, the Information Commissioner says that Article 10 rights enforced in this way could apply to other ‘absolute exemptions’ outlined in the FOIA. Request Initiative is watching for further the developments.

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