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Freedom of Information – Case Law Update

Freedom of Information – Case Law Update

Employment and HR lawyer Sinead McCracken provides a refresher on the Freedom of Information Act and also considers recent developments in the case law.

This factsheet is a refresher on the Freedom of Information Act 2000 and also considers recent developments in the case law.

In 2018, there were 12,169 Freedom of Information requests received across all monitored bodies. This was an increase of 1,239 requests (11.3%) during the same period in 2017, for example Departments of State received a further 867 requests alone.

In January 2005, the Freedom of Information Act came into force replacing the former Public Records Act 1958. It provides public access to information held by public authorities such as, the NHS or governmental departments in England, Wales and Northern Ireland in two ways:

  1. public authorities are obliged to publish certain information about their activities; and
  2. members of the public are entitled to request information from public authorities.

The aim of the Act is to make public authorities accountable for their actions; encourage openness; and to facilitate more public trust and confidence in public sector bodies.

Dransfield – v – Information Commissioner

The Court of Appeal ruled that an authority must consider all the relevant circumstances to decide on balance whether a request is vexatious. Four relevant issues were identified: burden (the number, breadth, pattern and behaviour of previous requests); motive (the underlying rationale or justification for the request); value of the request (this may link to the requester’s motive); obsessive conduct (conduct which harasses or distresses staff or use of abusive language).

Vexatious requests are difficult to establish. For example, a vengeful request could be non-vexatious, if the information which would be disclosed is important; ought to be publicly available; and promotes the Freedom of Information Act.

Kennedy – v – The Charity Commission

In June 2007, a Freedom of Information request was made by Mr Kennedy, a journalist at The Times, for disclosure of certain information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the ‘Mariam Appeal’ (initiated by Mr George Galloway MP). The Charity Commission relied upon s.32(2) of the Act to refuse the request. The Times newspaper pursued this case from tribunal level to the European Court of Human Rights (“ECHR”).

Section 32(2) of the Act provides that information held by a public authority is exempt information if it is held only by virtue of being contained in:

a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or;
b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

The case was considered by the Court of Appeal (CoA) who concluded that the s.32(2) exemption was applicable.

In recent years, decisions by the ECHR have indicated that Article 10 of the ECHR included a right to obtain information from government.

Supreme Court Ruling

In March 2014, the Supreme Court considered the case,  focussing on two key questions:

  1. whether the absolute exemption in s.32(2) continues after the end of an inquiry; and
  2. if so, what, if any difference Mr Kennedy’s rights under article 10 of the ECHR made to that result.

A 5:2 majority decided that the request was covered by the s.32(2) exemption. They also rejected the argument that recent ECHR decisions demonstrated that Article 10 created a right to access government information.

European Court Ruling

In December 2018, the ECHR considered the case which has subsequently prompted calls to reform the information law regime. It remains unclear whether Article 10 of the ECHR provides a direct right to access information held by governments and public bodies. Individuals seeking information may now have to follow two distinct routes:

  1. through the Freedom of Information Act;
  2. if that is unsuccessful, via common law with Article 10, and, if necessary, asking the High Court for a judicial review of any refusal to disclose material.

It has been considered that judicial review may not be suitable for the majority of Freedom of Information requesters due to the high cost implications involved.

Previously, 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 the need for court involvement. The most recent ruling from Strasbourg means the courts will always be involved.

Potentially, judicial review will only be accessible to wealthier individuals. It undermines the purposes of the Freedom of Information Act which is to give a right of access to information to all persons, despite their circumstances and is a violation of international law. 

About the author

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Sinead McCracken

Sinead McCracken is a trainee solicitor at Burnetts.

Published: Wednesday 9th January 2019

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