Factual and Procedural Background
The Appellant, an investigative journalist employed by The Newspaper, requested access to documents held by The Commission following three statutory inquiries it had conducted into “The Mariam Appeal”, a charity founded and managed by Individual A (a Member of Parliament) and others between 1998 and 2003. The Appellant believed that published reports of those inquiries were too brief to explain:
- the basis on which The Commission reached its conclusions,
- the extent of Individual A’s possible misuse of charitable funds, and
- whether The Commission had adequately performed its regulatory role.
On 8 June 2007 the Appellant made a request under the Freedom of Information Act 2000 (FOIA) for four classes of documents created or received for the inquiries. The Commission rejected the request, relying on FOIA section 32(2), which confers an absolute exemption for information contained in documents placed in the custody of, or created by, a person conducting a statutory inquiry. The Information Commissioner upheld the refusal. The Appellant appealed to the First-tier Tribunal, which allowed the appeal, holding that section 32(2) should be “read down” so that the exemption expired once the inquiry ended. The Upper Tribunal made no determination. The High Court and Court of Appeal (twice) reversed the tribunal, concluding that section 32(2) provided a continuing absolute exemption. The Appellant appealed to the Supreme Court, which by majority dismissed the appeal on 26 March 2014.
Legal Issues Presented
- Does FOIA section 32(2) create an absolute exemption that continues after a statutory inquiry has concluded, or does it lapse once the inquiry ends?
- If the exemption continues, must section 32(2) be “read down” under Human Rights Act 1998 section 3 to avoid incompatibility with the Appellant’s rights under Article 10 of the European Convention on Human Rights?
- Alternatively, is the Appellant entitled to disclosure under common-law principles of openness and accountability governing statutory inquiries, independent of FOIA?
Arguments of the Parties
Appellant’s Arguments
- Section 32(2) should be construed as time-limited to “documents held for the purposes of the inquiry”, ceasing when the inquiry ends.
- In the alternative, Article 10 imposes a positive obligation on public authorities to impart information to “public watchdogs”; therefore section 32(2) must be read down, or a declaration of incompatibility granted.
- The Commission’s refusal defeats the transparency and accountability objectives within the Charities Act 1993 and is disproportionate to any legitimate aim.
The Commission’s (Public Authority’s) Arguments
- Section 32(2) confers an absolute exemption that persists until the records become “historical records” (20/30 years) under the Public Records Act 1958.
- Article 10 does not create a general right of access to information; even if it did, other statutory powers permit voluntary disclosure, satisfying any Convention requirement.
- Routine disclosure would chill cooperation by donors, other regulators and foreign bodies, undermining The Commission’s regulatory functions (FOIA section 31 concerns).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Guardian News) v City of Westminster Magistrates’ Court [2013] QB 618 |
Open-justice principle permits access to court documents despite FOIA s.32 |
Majority distinguished inquiries from courts; minority used it to support broader disclosure duties |
| Scott v Scott [1913] AC 417 |
Fundamental requirement for courts to sit in public |
Formed part of minority’s analogy between court openness and inquiry transparency |
| Leander v Sweden (1987) 9 EHRR 433 |
Article 10 does not impose positive duty of disclosure |
Majority relied on it; minority treated later cases as narrowing its force |
| Gaskin v UK (1990) 12 EHRR 36 |
Same principle as Leander |
See above |
| Guerra v Italy (1998) 26 EHRR 357 |
No duty under Article 10 to collect & disseminate environmental info |
Cited in majority reasoning |
| Roche v UK (2006) 42 EHRR 30 |
Confirmed Leander line |
Majority followed |
| Társaság v Hungary (2011) 53 EHRR 3 |
Article 10 gives NGOs/public watchdogs a right to state-held info of public interest |
Relied on by tribunal and minority; majority viewed as insufficient to displace Grand Chamber cases |
| Kenedi v Hungary (2009) 27 BHRC 335 |
Positive right of historians to access archival material |
See above |
| Gillberg v Sweden (2012) 34 BHRC 247 |
Discussed potential “negative” freedom under Article 10 |
Majority used to reinforce absence of positive disclosure obligation |
| Shapovalov v Ukraine (App 45835/05) |
Re-affirmed watchdog role of journalists |
Cited by minority as continuing “direction of travel” |
| Youth Initiative for Human Rights v Serbia (App 48135/06) |
Refusal to give surveillance statistics violated Article 10 |
Minority relied on to show Strasbourg trend |
| Österreichische Vereinigung v Austria (App 39534/07) |
Blanket refusal of land-transfer decisions breached Article 10 |
Key authority for minority view that article 10 applies to state information holdings |
| Hazell v Hammersmith [1992] 2 AC 1 |
Incidental powers cannot override specific statutory scheme |
Cited in debate over Charity Commission’s residual powers |
Court’s Reasoning and Analysis
Statutory Construction: The majority held that, on ordinary grammar and context, FOIA section 32(2) attaches the exemption to the origin of the documents, not to any temporal limit; thus the absolute exemption survives after an inquiry ends and lasts until files become historical records.
Interaction with Article 10: The Appellant argued that Strasbourg jurisprudence now recognises a positive right for journalists to receive state-held information. The majority—relying on Leander and similar Grand Chamber cases—found no settled Strasbourg principle imposing such a duty; recent section-level cases (e.g., Társaság) showed only an unsettled “direction of travel.” Accordingly, section 32(2) need not be read down and is not incompatible with Article 10.
Common-Law Transparency: The majority accepted that The Commission possesses inherent and statutory powers (Charities Act 1993, sections 1B–1E) to disclose information in pursuit of accountability and transparency. A refusal could be judicially reviewed, balancing public interest in openness against harm to regulatory functions. Hence, even without FOIA access, some alternative route to disclosure remained.
Dissenting Views: Four Justices (Judge Wilson, Judge Carnwath, Judge Sumption and Judge Toulson concurring in part) found the Strasbourg trend persuasive and concluded that section 32(2) imposed a disproportionate, blanket interference with Article 10 rights. They considered it “possible” under HRA section 3 to read the exemption as expiring when an inquiry ends, thereby subjecting documents to the usual FOIA regime and public-interest balancing.
Holding and Implications
Holding: APPEAL DISMISSED. The Supreme Court (majority) upheld the absolute FOIA exemption in section 32(2) for inquiry documents, lasting until records become historical, and found no breach of Article 10.
Implications: • Journalists and NGOs cannot invoke FOIA to obtain documents generated for or supplied to completed statutory inquiries until the 20/30-year record-release period expires, unless the public authority voluntarily discloses them.
• The decision endorses reliance on judicial review and the public authority’s residual statutory powers—rather than FOIA—for post-inquiry transparency.
• No new binding precedent on the positive scope of Article 10 was set; the Court left unresolved the evolving Strasbourg “direction of travel.”