20 March 2018
In 2007 Dominic Kennedy (The Times) requested information under the Freedom of Information Act (‘FOIA’) concerning three inquiries the Commission carried out into the Mariam Appeal, which was launched by George Galloway in connection with sanctions imposed on Iraq following the first Gulf War. The Charity Commission had withheld the documents, relying on an exemption in the FOIA that applies to information held in connection with a statutory inquiry.
In his appeal, Mr Kennedy argued that the exemption should not apply after the inquiry had ended. He also attempted to argue that the withholding of information by the Charity Commission amounted to a violation of Article 10 of the European Convention on Human Rights (‘ECHR’) – the right to freedom of expression.
The appeal was dismissed by a majority (with two Lord Justices dissenting). The Court upheld the Charity Commission’s view that the exemption did apply and continues to do so after the conclusion of an inquiry. The Court also found that this appeal did not engage Article 10 of the ECHR, but had it needed to consider Article 10, the Court would have concluded that the ECHR did not confer a right to receive information from an unwilling public authority as it does not impose a positive obligation to disclose information. However, the Court did discuss that rights to obtain public information could be derived from sources other than the FOIA, and in future the Commission may be required to accede to a request for information in accordance with the ‘common law principle of openness’. Ultimately the Commission will have to argue in each case whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.