The Freedom of Information battle between Dominic Kennedy, investigations editor at The Times, and the Charity Commission is being taken to the European Court of Human Rights (pictured, Reuters).
Kennedy and the newspaper have been fighting 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 had access to medical help.
Kennedy is investigating the fund, which ran between 1998 and 2003, following the discovery that money had been spent on matters outside its stated aims and activities.
The Charity Commission has found that the Mariam Appeal should have been registered as a charity, and that Galloway had used the appeal's funds on travel and political campaigning for an end to sanctions against Iraq.
It also found that some of the funds were money paid in connection with contracts breaching United Nations' sanctions against Iraq.
The newspaper and Kennedy have already taken the case to the Information Commissioner's Office, on appeal to the Information Tribunal then to the Court of Appeal before reaching the Supreme Court.
The Supreme Court held by a majority of 5-2 that the Charity Commission was covered by the blanket exemption in secton 32 (2) of the Freedom of Information Act (FoIA), which states that information held by a public authority is exempt 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, for the purposes of the inquiry or arbitration, or any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.
But it said that that FoIA was never intended to decide whether such information should be disclosed – rather, that issue was governed by other rules of statute and common law.
Lord Mance expressed the view that the Charity Commission had the power to disclose information to the public concerning inquiries on which it has published reports, 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 will 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.
Lord Toulson's said open justice was a fundamental principle of common law, and judicial processes should be open to public scrutiny.
But the majority of the court – Lord Wilson and Lord Carnwath dissented – would have held, had it been necessary, that Article 10 of the European Convention on Human Rights did not contain a freestanding right to receive information from public authorities.
The result was that when Kennedy and The Times renewed their requests to the Charity Commission it supplied some information – which led to the Commission supplying some documents but refusing to release other information on grounds ranging from legal professional privilege to confidentiality, the need to obtain consent from those whose communications might be disclosed, the prevention of disorder and crime and the protection of he rights of others.
Kennedy and The Times argue in their application to the Strasbourg court that if Article 10 – the right to freedom of expression, which includes the right to receive and impart information – does not give the right to information held by public authorities, a State could impose a blanket ban on access to information held by such authorities on matters of compelling public interest and importance which they had investigated, and could do so without having to justify either the aims or proportionality of the ban.
This, they argue, would restrict the media's ability in the UK and elsewhere to be free, active and inquiring, and would frustrate the object and purposes of the Convention.
The majority of the Justices in the Supreme Court found that Article 10 did not give a right to access official information. But Lord Mance pointed out that "The Strasbourg jurisprudence is neither clear nor easy to reconcile", adding that "In the present case, Strasbourg has spoken on a number of occasions to apparently different effects."
Kennedy and The Times argue that the current situation means a failure of the Convention system, and means that, because of the Supreme Court's decision, the Convention right to receive information from public authorities is given no weight by the UK judiciary or the political branches of government when journalists or members of the public seek access to information held by a public authority which has finished an inquiry on a matter of public interest and concern.
They also say that if, as they contend, Article 10 does protect a general right to access to information held by public authorities after they have finished their inquiries, section 32 (2) of FoIA will need to be displaced to allow the freedom of information scheme to comply with the Convention.
The application also requests that the case should go straight to the Grand Chamber of the Strasbourg Court rather than be dealt with at first by a section court.