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Strasbourg freedom of information ruling in Charity Commission case 'disappointing' to campaigners

The European Court of Human Rights has rejected a case brought by The Times and investigative journalist Dominic Kennedy over the Charity Commission’s refusal to disclose documents relating to its investigation into a fund to five medical help to Iraqi children.

The First Section of the Strasbourg court held that the application by newspaper and Kennedy was inadmissible because they had not exhausted all the potential remedies in the English courts.

Campaign for Freedom of Information director Maurice Frankel said yesterday’s decision was “very disappointing”.

The ruling means the issue of whether Article 10 of the European Convention on Human Rights gives a direct right to access information held by governments and public bodies remains unclear.

It also means that people seeking information might have to follow two routes – first through a request under the Freedom of Information Act and, if that fails, then by seeking a separate route via the common law, coupled with Article 10, and, if necessary, asking the High Court for judicial review of any refusal to disclose material.

Various groups – including the Campaign for Freedom of Information, freedom of expression group Article 19 and the Media Legal Defence Initiative – had been allowed to act as interveners in The Times’s application to Strasbourg,

The case involved efforts by the newspaper and Kennedy to obtain records of the Charity Commission’s investigation into the Mariam Appeal, a fund set up by MP George Galloway to ensure that Iraqi children suffering from Leukaemia had access to medical help.

Kennedy was investigating the fund, which ran between 1998 and 2003, following the discovery that money was spent on matters outside its stated aims and activities.

The case ended up at the Supreme Court, where the newspaper and Kennedy argued that the Charity Commission’s refusal to release information because it was covered by the absolute exemption in section 32(2) of the Act breached their rights under Article 10 of the European Convention on Human Rights, covering the right to freedom of expression.

Recent decisions by the Strasbourg court, they said, had indicated that Article 10 included a right to obtain information from government.

In March 2014 the Supreme Court held, by a 5-2 majority, that the Freedom of Information Act request to the Charity Commission was covered by the blanket exemption in section 32 (2) of the act.

This exempts information held by a public authority from disclosure 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, or for the purposes of the inquiry or arbitration.

The Supreme Court, by a majority, rejected the argument that recent Strasbourg decisions showed convincingly that Article 10 created a right to government information.

It also held that the act was never intended to decide whether such information should be disclosed – rather, that issue was governed by other rules of statute and common law, the majority held.

Lord Mance said the Charity Commission had the power to make information about inquiries on which it had published reports public, both in pursuit of its statutory objective under the Charities Act of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency by public authorities.

The exercise of this power would be subject to judicial review – and, given the importance of openness and transparency, courts would apply a high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports.

Campaigners had hoped that The Times’s case would be bolstered by the decision of the Grand Chamber of Strasbourg court in Magyar Helsinki Bizottsag v Hungary in March 2016.

The Grand Chamber said Article 10 did provide a right to obtain information from government, provided that:

  • The person seeking it was acting in the role of a “social watchdog” – which would typically apply to the media and non-governmental organisations, but could also cover academics, authors, bloggers and social media users;
  • It was sought for the purpose of communicating information to the public on a matter of public interest;
  • It was readily available to the public authority.

Campaign for Freedom of Information director Maurice Frankel said: “It is very disappointing that, having established that Article 10 provides a right to information by someone seeking to inform the public about a matter of public interest, the Strasbourg court has held that judicial review provides an effective and accessible remedy.

“It may be a realistic remedy for a large media group, but it is not for the majority of FoI requesters.

“Small NGOs, freelance journalists or individuals would risk being put out of business by the costs if their judicial review failed.

“The FoI enforcement mechanism, relying on the Information Commissioner and tribunal, avoids this massive gamble, and that is what makes the right of access feasible.

“It is a shame that the Strasbourg court did not recognise this.”

Frankel went on: “The court argued that if Article 10 operated via FoIA the Times would still have to make a fresh request anyway, which would end up in the Court of Appeal, with the same costs. But even if this happened, it would be a one-off occurrence.

“Once Article 10 was recognised as providing access to information protected by an absolute exemption, the Information Commissioner and tribunal would deal with most cases without need for the courts.

“Unfortunately, the Strasbourg decision means that the courts will always be involved.”

David Banisar, senior legal counsel at Article 19, said it was “particularly bad” that the Strasbourg court was dismissive of the real costs of using judicial review.

He said that in reality a judicial review “was not accessible except to the very brave or very rich who could withstand the usual government practice of hiring multiple QCs for nearly every case”.

He added: “This undermines the purpose of FoIA to give a right of access to information to all persons, no matter their circumstances and violates international law.

“In comparison, as set out by the UN Human Rights Committee, the right of access should be ‘easy, prompt, effective and practical’.

“The Council of Europe as far back as 1981 stated that ‘Effective and appropriate means shall be provided to ensure access to information’. Judicial review does not meet either of those tests.”

In addition, by deferring to the Supreme Court on the Charities Act and “a mythical common-law right of access” – which, if it really existed would raise questions about the need for FoIA – the Strasbourg court seemed to be encouraging the courts to create “stealth freedom of information” which would, in practice, be nearly impossible to enforce.

Banisar added: “One small positive fragment is that the court was clear that the UK government’s arguments and Supreme Court’s obiter statement that the European Convention does not include of right of access to information are incorrect and that any requests for access to information need to be taken with Article 10 in mind in the absence of a ‘strong reason’ for doing otherwise.

“That could have implications in cases where there are not laws like the Charity Act which give a supposed right to information.”

He gave as examples the exclusion from the FoIA of bodies such as the National Crime Agency or the security services, saying that in their cases the UK courts would have to find an Article 10 compliant law to regulate access to information they held.

“If the courts did this in a lot of cases, it would be in the government’s interest to extend FoIA rather than have to deal with many different access regimes and the confusion that would result.

“The Government should respond to this by ensuring that FoIA covers all bodies in all circumstances.”

Picture: Reutrers/Vincent Kessler

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