Public authorities also have obligations to disclose documents under the common law
The Supreme Court has handed down judgment in Kennedy v Charity Commission  UKSC 20. The case was argued on the basis of section 32 Freedom of Information Act 2000 (FOIA), on which the appellant lost, as the majority ruled that s.32 provides an absolute exemption from the provisions of FOIA, and it was it not necessary to read down s.32 in order to ensure compatibility with Article 10 ECHR.
However, this was not because the court concluded that Mr Kennedy had no right to the disclosure sought. There are other routes to access to documents held by public bodies authorities (at least those, such as the Charity Commission in the present case, conducting inquiries) which exist alongside FOIA. These exist under the common law, sometimes together with other statutes (such as the Charities Act 1993, under which the Charity Commission’s general duties include acting in a way that is accountable and transparent). A public authority must exercise its powers of disclosure in the public interest. Decisions made by public authorities refusing to provide access to documents other than via FOIA may be subject to judicial review. The principles of open justice and transparency are fundamental, and any refusal to provide documents, or review of that refusal by the court, should have these principles in mind. The court would look at the proportionality and merits of the public authority’s decision.
This is an important ruling for those who wish to seek documents from public bodies. It is clear that FOIA is not a complete and self-contained system. Section 78 preserves other ways in which documents may be put into the public domain. Individuals seeking documents who either believe that an exemption under FOIA may apply, or are faced with a refusal based on an exemption, should consider other statutory routes to access if applicable, and/or the common law. These general principles of common law will apply to decisions of public bodies faced with a request to release documents. Just because the public authority can point to an exemption under FOIA does not mean that they do not have an obligation to provide the documents requested under the common law (or under another statute).
On the facts the majority held that there was an important public interest in the disclosure of the material sought by Mr Kennedy and stated that the Charity Commission should accede to any such further request for disclosure, except in so far as that public interest is outweighed by any countervailing rights or arguments which may be advanced.
The minority, whilst agreeing that there was an important public interest in disclosure, decided that this would best be achieved by reading down section 32 (although such a construction was not the natural one) in order to protect Mr Kennedy’s rights under Article 10.
The judgment is lengthy, containing 5 separate judgments from the Justices. It contains a great deal of helpful discussion about access to documents, and about the roles of the common law and human rights generally. The majority did not find it necessary to rely on Article 10 ECHR, finding the necessary principles within the common law. Lord Mance (giving the leading judgment) emphasised that the natural starting point when dealing with questions of freedom of expression should be the domestic common law which provides similar protections to those available under the Convention – sometimes the common law goes further than the European Article 10 jurisprudence, and sometimes it may be inspired by it (such as in protection of privacy). Lord Toulson referred to there being “a baleful and unnecessary tendency to overlook the common law” since the coming into force of the Human Rights Act 1998.
It is also interesting generally in relation to standards of judicial review. Lord Mance made clear that the standard of review, should a judicial review be brought in such cases would not be Wednesbury unreasonableness, but rather a standard of more intense scrutiny, involving an examination of the balancing exercise undertaken by the public authority. This accords with the development in judicial review cases over recent years of an issue-sensitive scale of intervention by the court.
The court considered in detail the ECtHR jurisprudence on Article 10 and access to documents, with the majority concluding that it had not reached a state where it could be said that Article 10 imposes a positive obligation on the State to provide individuals with documents on request. The minority agreed with counsel for Mr Kennedy’s submission that the “direction of travel” of the Strasbourg court was clear.
This case will provide food for thought for media lawyers, human rights lawyers and public lawyers alike.
A full case report on this judgment is available here.