CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 13 novembre 2018

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The second applicant, Mr Dominic Kennedy, an Irish national, is a senior investigative journalist employed by The Times who was born in 1963. They are represented before the Court by Ms P. Sarma, a lawyer practising in London. 2.     Article 19, the Campaign for Freedom of Information, the Citizen Network Watchdog Poland, the Media Legal Defence Initiative, and the Helsinki Foundation for Human Rights were all granted leave to intervene as third parties. The Government of Ireland did not seek to exercise its right to intervene (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). A.     The circumstances of the case 3.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     The background facts (a)     The “Mariam Appeal” and Charity Commission inquiries 4.     The Mariam Appeal was a fund launched in 1998 by Mr   George Galloway, a Member of Parliament, to enable a young Iraqi leukaemia sufferer (Mariam) to receive treatment in the United Kingdom, to arrange treatment for other Iraqi children suffering from leukaemia and to provide medical supplies to Iraq. Although its objects were charitable, it was not formally registered as a charity. It continued in operation until 2003 and raised a total of almost 1.5 million pounds sterling. 5.     Following the publication in The Times of an article written by the second applicant, Mr Kennedy, in which he alleged that funds collected under the auspices of the Mariam Appeal had been misused, the Charity Commission for England and Wales opened an evaluation into the use of the Mariam Appeal’s funds for non-charitable purposes. It subsequently launched an inquiry under section 8 of the Charities Act 1993 (see paragraph 63 below) to investigate how the monies raised between March 1998 and April 1999 had been spent. Meanwhile, the Charity Commission continued to evaluate the use of funds obtained after April 1999. A second inquiry was later opened to investigate how monies raised throughout the lifetime of the Mariam Appeal had been spent. Both inquiries were closed in March 2004. On 28 June 2004 the Charity Commission published a two-and-a-half-page statement of the results of the inquiries setting out its findings. It found that, although its founders were unaware that they had created a charity, the Mariam Appeal was charitable and ought to have been registered with it; and that, although some payments made to trustees of the Mariam Appeal had been in breach of trust, there had been no bad faith, with the consequence that recovery of the sums would not be pursued. 6.     On 9 December 2005 the Charity Commission opened a third inquiry as a result of allegations that the Mariam Appeal had received donations from contracts made under the United Nations Oil-for-Food Programme, which had been established by the United Nations in 1995 to allow Iraq to sell oil on the world market in exchange for food, medicine, and other humanitarian needs for ordinary Iraqi citizens. The inquiry closed in April 2007 and the statement of the results of the inquiry, running to eight pages, was published on 8 June 2007. The Charity Commission concluded that some donations to the Mariam Appeal had come from improper sources, namely contracts made under the UN Programme, and that the trustees had failed to inquire sufficiently into the source of the donations. Accordingly, they had not discharged their duty of care as trustees in respect of these donations. The Charity Commission decided not to take any action, since it was a civil regulator and did not have powers of criminal prosecution and, in any case, the Mariam Appeal had not operated since 2003 and held no assets requiring protection. (b)     The request for information 7.     On 8 June 2007 Mr Kennedy sought information from the Charity Commission concerning the latter’s inquiry into the Mariam Appeal between December 2005 and April 2007. (c)     The Charity Commission refusal 8.     By letter dated 4 July 2007 the Charity Commission, via its Compliance and Support division, refused to provide the information requested. The letter confirmed that the Charity Commission held the information sought but relied on both qualified and absolute exemptions under the Freedom of Information Act 2000 (“FOIA” – see paragraphs   48 ‑ 57 below). Invoking first a qualified exemption available under section   31 FOIA (information related to law enforcement), the letter explained that since that exemption was not absolute it was necessary to consider under section 2 of the FOIA whether the public interest in withholding the information was outweighed by the public interest in its disclosure. It concluded that, at the relevant time, the balance of the public interest weighed more strongly with securing the Commission’s ability to carry out its functions efficiently and therefore lay in withholding the information. 9.     The letter also indicated that the Charity Commission considered the absolute exemption in section 32 of the FOIA (information held in court records or by a person conducting an inquiry or arbitration) to be engaged, as well as a number of other exemptions in the FOIA. 10.     Mr Kennedy invited the Charity Commission to reconsider its decision, arguing that the exemptions had been misapplied. On 3   August 2007 the Charity Commission confirmed that an internal review had been conducted and that the original decision to withhold the information had been upheld. (d)     The complaint to the Information Commissioner 11.     On 1 November 2007 Mr Kennedy complained, under section 50 of the FOIA, to the Information Commissioner about the refusal to disclose the information. 12.     On 9 September 2008 the Commissioner published his decision notice. He found that all the information requested was exempt under the absolute exemption contained in section 32(2) (documents obtained or created in connection with an inquiry). He therefore upheld the Charity Commission’s decision to refuse to disclose the information. Since an absolute exemption applied, he explained, there was no need for him to consider the public interest set out in section 2 of the FOIA. In light of his conclusion, he also saw no need to consider whether other exemptions applied. 2.     The domestic proceedings (a)     The Information Tribunal 13.     Mr Kennedy appealed under section 57 of the FOIA to the Information Tribunal (“the Tribunal”) requesting it to consider afresh whether the information was exempt under section 32 of the FOIA. The Charity Commission applied to be joined as an interested party and the application was granted. It subsequently lodged a schedule of the information falling within the scope of the information request. 14.     Following receipt of the schedule, Mr Kennedy identified more precisely the classes of documents, within the terms of his request, to which he sought access. He identified the following four categories: (i)     documents containing information explaining the Charity Commission’s conclusion that Mr Galloway may have known that Iraqi bodies were funding the Mariam Appeal; (ii)     documents from the Charity Commission inviting Mr Galloway to set out his position or speak to the Charity Commission and documents containing his response; (iii)     documents received by the Charity Commission from other public authorities and sent by the Charity Commission to them; and (iv)     documents containing information explaining why the Charity Commission had decided to start and continue the second inquiry. 15.     Mr Kennedy subsequently refined his request so as to exclude information to or from a foreign State or an international organisation and any document for which a claim of parliamentary privilege was asserted. He did this in order to ensure that his request did not interfere with interests protected by the FOIA and to reduce the scope of his request in the interests of proportionality. 16.     On 14 June 2009 the Tribunal upheld the decision of the Information Commissioner that section 32 of the FOIA applied and was an absolute exemption in respect of the bulk of the requested material. It ordered that a small number of documents be disclosed unless another exemption applied. Those documents were subsequently disclosed. (b)     The High Court 17.     Mr Kennedy appealed to the High Court. He relied on arguments concerning the statutory interpretation of the Charities Act 1993 (see paragraphs 58-64 below) and the FOIA. 18.     The appeal was refused on 19 January 2010 with the judge preferring the arguments of the Information Commissioner and the Charity Commission. (c)     The Court of Appeal 19.     Mr Kennedy sought permission to appeal to the Court of Appeal. Permission was granted on one ground, namely that the judge had wrongly interpreted section 32(2) as conferring (i) a blanket exemption from disclosure that continued for thirty years after the conclusion of an inquiry regardless of the content, the harmlessness of the disclosure and the public interest of disclosure; and (ii) an exemption in respect of documents held by a public authority prior to the start of an inquiry. In light of recent decisions of this Court, namely Társaság a Szabadságjogokért v.   Hungary , no.   37374/05, 14 April 2009, and Kenedi v. Hungary , no. 31475/05, 26   May 2009, Mr Kennedy argued in particular that pursuant to section 3 of the Human Rights Act 1998 (see paragraph 77 below), section 32(2) of the FOIA should be interpreted in a way compatible with the Convention, including in particular the right to freedom of expression guaranteed by Article   10. 20.     On 12 May 2011 the Court of Appeal delivered a judgment. Lord   Justice Ward, giving the lead judgment, noted that, applying conventional principles of statutory construction, the Charity Commission’s interpretation of section 32(2) was to be preferred. The Article 10 issue had not been raised before the Tribunal or the High Court, which in the normal course of events would have prevented it from being raised before the Court of Appeal. However, Lord Justice Ward indicated that he was nevertheless prepared to refer the human rights issue to the Information Tribunal, to be considered for the first time, and to stay the appeal pending its determination. (d)     Hearing before the First-tier Tribunal General Regulatory Chamber (Information Rights) 21.     Meanwhile, on 18 January 2010, the functions of the Information Tribunal were transferred to the First-tier Tribunal General Regulatory Chamber (Information Rights). 22.     A hearing before the First-tier Tribunal took place in October 2011. The applicant argued that a right of access to information could be derived from Article 10 of the Convention and that the refusal to disclose information amounted to an interference with freedom of expression. The Charity Commission’s position was that the applicant did not have a right to receive the information and, in any event, that section 32(2) of the FOIA did not interfere with any such right because it did not prohibit its disclosure or otherwise create an information monopoly. Furthermore, section 32(2) did not prevent a public authority from disclosing information to an individual outside of the FOIA, but instead simply set the limits on the statutory right to receive information under it. Before the FOIA had come into force journalists such as the second applicant could request information from public authorities, which may or may not have provided it. If a journalist considered that the public authority had violated Article 10 by failing to provide him with any information, he could have brought proceedings on that basis. The introduction of the FOIA did not limit the right to bring a claim under the Human Rights Act; rather, it introduced an additional statutory right to receive information in specified circumstances. The Charity Commission therefore contended that section 32(2) of the FOIA reflected a fair balance between the rights of the applicant and the rights of society as a whole. 23.     Similarly, the Information Commissioner, who had been invited to intervene, argued that: there was no general right to information under Article   10 and, as such, the refusal to disclose the material could not have interfered with that right; if there was such a breach, it would not be caused by section 32(2) of the FOIA but rather by the Charity Commissioner’s failure to discharge its duty under the Human Rights Act to provide the information in question. The Secretary of State for Justice, who was also granted permission to intervene, submitted that there was no Article 10 right at play; and, in any event, section 32(2) would not interfere with any such right. The FOIA provided the public with an enhanced statutory right to information which supplemented, but did not supplant, other regimes for access to or control of information. 24.     On 18 November 2011 the Tribunal published its report to the Court of Appeal. It gave detailed and careful consideration to this Court’s case-law on Article 10 of the Convention. It concluded: “42.     As best we can the [Tribunal] considers that this developing jurisprudence is not necessarily granting a general right to receive information under Article 10. Such a general right of access still only exists as set out under Leander. It has advanced, however, towards a broader interpretation of the notion of freedom of information which has recognised an individual right of access conferred by Article 10(1) but which is subject to certain ‘formalities, conditions, restrictions or penalties’ described in Article 10(2). This may be where a social watchdog is involved and there is a genuine public interest as in Társaság or where historical research is being hindered on a matter of public importance as in Kenedi. It appears to us that this extension of scope of Article 10(1) is now being consistently applied and recognised by a number of chambers of the ECtHR. Our Court of Appeal has also recognised this as a clear development. In our view this has not led to a general right to receive information as that would be going too far. However it is now clear that the ECtHR has developed a wider approach from that first established in 1978 to the notion of ‘freedom to receive information’. There is now recognition of an individual right of access to information in certain circumstances. 43.     We try to explain this by reference to what the ECtHR says in Tarsasag which seem[s] to us to establish, particular[ly] in relation to social and media watchdogs, that: i)     Where a State makes no provision for a right of access to official information (at least so far as the right is needed to help inform public debate), that absence will itself constitute an interference with the right to freedom of expression which is protected by Article 10(1); ii)     Where a State does confer such a right of access but the right is shaped (i.e. so that there is no right of access outside its bounds), then for information falling outside the bounds of the right: (a)     there is an interference with the right to freedom of expression which is protected by Article 10(1); and (b)     that interference falls to be addressed by Article 10(2).” 25.     The Tribunal considered that Mr Kennedy was seeking to gather information on matters of public concern; that the Charity Commission, by its refusal to disclose, was imposing a form of censorship; and that Mr   Kennedy’s right to impart information was also impaired. After examining the other individuals and bodies who potentially held the information, the Tribunal found that, whether or not an “information monopoly” was a necessary prerequisite for an interference with Article   10, there was such a monopoly in the applicant’s case. 26.     In view of the above, the Tribunal concluded that the conventional meaning of section 32(2) of the FIOA constituted an interference with Mr   Kennedy’s Article 10 rights. Turning to consider whether the interference was justified, the Tribunal accepted that the aim of the legislation was to protect information lodged with, or created during the course of, the inquiry and that this aim was legitimate. However, it found that the absolute exemption afforded by section 32(2) did not adequately balance the interests of society with those of individuals and groups, and concluded that the public interest in disclosure of information that was not properly withheld under other qualified exemptions available in the FOIA clearly outweighed any interest in its being withheld. The interference was therefore not “necessary in a democratic society”. In the view of the Tribunal, section 32(2) therefore had to be interpreted in a manner consistent with Article 10 by limiting the exemption from disclosure so that it ended upon the termination of the third inquiry in the present case. (e)     Restored hearing before the Court of Appeal 27.     On 20 March 2012 the Court of Appeal handed down its judgment in the restored appeal after hearing arguments from the parties. It referred to a recent judgment of the Supreme Court in Sugar v. British Broadcasting Corporation (see paragraphs 71-73 below), delivered after the Tribunal’s report, where that court had concluded that Article 10 did not apply to a request to the British Broadcasting Corporation, a public authority for the purposes of the FOIA, for disclosure of a document. Considering itself bound by that judgment, the Court of Appeal held that Article 10 was not engaged on the facts of the case. Given this conclusion, the court declined to carry out an analysis of whether, if Article 10 had been engaged, the interference would have been justified pursuant to Article 10 § 2. 28.     The Court of Appeal granted leave to appeal to the Supreme Court since the issues raised on the appeal were important ones and in order to allow that court to consider the precise boundaries of Article 10. (f)     The Supreme Court 29.     Three issues were argued before the Supreme Court. First, whether as a matter of ordinary statutory construction, section 32(2) FOIA contained an absolute exemption which continued after the end of an inquiry; secondly, if so, whether that was compatible with Mr Kennedy’s rights under Article 10 of the Convention; and, thirdly, if not, whether section   32(2) could be “read down” pursuant to the Human Rights Act 1998 (see paragraph 77 below). The appeal was heard by a panel of seven Justices. (i)     The court’s decision on the disposal of the appeal 30 .     On 26 March 2014 the Supreme Court handed down its judgment. All seven Justices agreed that Mr Kennedy’s request for information pertained to a matter of considerable public importance and that there was a public interest in the information he sought. They also unanimously concluded that section 32(2) of the FOIA contained an absolute exemption which continued after the end of an inquiry. However, the court dismissed Mr   Kennedy’s appeal by a majority of five Justices, with the majority declining to analyse the case in the manner presented by Mr Kennedy. 31.     In respect of the first issue argued, the majority held that section   32(2) of the FOIA had to be construed as providing an absolute exemption from disclosure which did not cease upon the conclusion of the inquiry but continued until the information sought became “historical records” within the meaning of section 63 FOIA (see paragraph 53 below). 32.     Before turning to consider the applicability of Article 10 of the Convention, the majority considered it necessary to examine whether the Charity Commission might be required to disclose information under other statutory or common law powers preserved by section 78 FOIA (see paragraph   54 below). They agreed that the Charity Commission had the power to disclose information to the public concerning its inquiries both in pursuit of its statutory objectives under the Charities Act 1993 of increasing public trust in and accountability of charities, as well as under the general common law duties of openness and transparency incumbent on public authorities. The exercise of that power was subject to judicial review by the courts. They explained that since the Charities Act, bolstered by the common law principle of open justice, put Mr Kennedy in a no-less-favourable position regarding disclosure than he would have under Article   10, there was no question of “reading down” section 32(2) or finding it to be inconsistent with Article 10. In other words, the correct reading of section   32 was not that information pertaining to inquiries benefitted from a blanket exemption from disclosure but that such information was taken outside the framework of the FOIA since an alternative means of obtaining disclosure already existed. 33 .     Lord Mance said: “... I find it difficult to think that there would be any significant difference in the nature or outcome of a court’s scrutiny of any decision by the Commission to withhold disclosure of information needed in order properly to understand a report issued after a Charities Act inquiry, whether such scrutiny be based solely on the Charity Commission’s objectives, functions and duties under the Charities Act or whether it can also be based on article 10, read in the width that [counsel for Mr   Kennedy] invites. The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. The nature of judicial review in every case depends upon the context ...” 34 .     As to the operation of the alternative remedy in the applicant’s case and the scope of judicial review, Lord Mance said: “56.     The Charity Commission’s response to a request for disclosure of information is in the light of the above circumscribed by its statutory objectives, functions and duties. If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed. In any proceedings for judicial review of a refusal by the Charity Commission to give effect to such a request, it would be necessary for the court to place itself so far as possible in the same position as the Charity Commission, including perhaps by inspecting the material sought. Only in that way could it undertake any review to ascertain whether the relevant interests had been properly balanced. The interests involved and the balancing exercise would be of a nature with which the court is familiar and accustomed to evaluate and undertake. The Charity Commission’s own evaluation would have weight, as it would under article 10. But the Charity Commission’s objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request. I therefore doubt whether there could or would be any real difference in the outcome of any judicial review of a Charity Commission refusal to disclose information, whether this was conducted under article 10, as [counsel for Mr Kennedy] submits that it should be, or not.” 35 .     Lord Toulson agreed with Lord Mance that if Article 10 applied in the present case, it was fulfilled by the domestic law. As to the application of the common law approach in Mr Kennedy’s case, he considered that it was for Mr Kennedy to make a request to the Charity Commission under its general powers of disclosure and for the Charity Commission to consider the public interest in disclosure and weigh any competing private or public interests in the balance. He indicated that “151.     It would be open to Mr Kennedy now to make a fresh request to the Charity Commission on the basis of this judgment. It would then be for the Administrative Court to consider any objection by the Charity Commission based on delay, but in considering such objection the court would need to take into account all the circumstances. Mention was briefly made in argument about the three month time limit imposed under CPR 54.5(1), but that is after the grounds for the application have arisen, which would be after any refusal of Mr Kennedy’s request. There could of course be argument that he should have made his first request on a different basis (as I would hold). Whether that should bar the claim from proceeding would be a matter for the court considering the application, but on the facts as they presently appear it would seem harsh that the claim should be barred not because of any delay on Mr   Kennedy’s part in seeking the information but because of legal uncertainty about the correct route.” 36 .     Lords Wilson and Carnwath dissented, holding that Article 10 did give rise to a general right of access to information and that section   32(2) should be read down so that the exemption it afforded ended with the conclusion of the inquiry. To hold otherwise would amount to a disproportionate interference with Mr Kennedy’s Article 10 rights. The two Justices expressed disquiet at the common law remedy relied upon by the majority. Lord Wilson pointed out that it had never been suggested to Mr   Kennedy that his request should be made otherwise that under the FOIA. He continued: “198.     In my view the scheme identified by the majority for disclosure by the commission outside the FOIA is profoundly unsatisfactory. With respect, it can scarcely be described as a scheme at all and there is certainly no example of its prior operation or other recognition of its existence. Compare it with the scheme under the FOIA which, apart from the apparent prohibition for 30 years, identifies an elaborate raft of prescribed situations in which the Commission is entitled, or subject to the weighing of rival interests may be entitled, to refuse disclosure; and under which a refusal can be countered by application to an expert, namely the Information Commissioner, who takes the decision for himself (section 50(1)) and whose decision can be challenged on points of law or even of fact by an expert tribunal (section 58(1)) and in effect without risk as to costs. 199.     ... The suggested scheme otherwise than under the FOIA is so vague and generalised that I regard the determination thereunder of any request for disclosure as impossible to predict. It may be that, in practice, the Commission and, on judicial review, the High Court judge would reach for the helpful prescriptions in the FOIA and, in effect, work in its shadow. But if, as I consider, Mr Kennedy’s rights under article   10 are engaged by his request, I even have doubts whether any refusal to disclose a document otherwise than under the FOIA could be justified under para 2 of the article. For restrictions on the exercise of his rights under article 10 must be ‘prescribed by law’, which in the words of the ECtHR, ‘must... be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct’ ... It is possible that the so-called scheme for disclosure otherwise than under the FOIA might fail that test ...” 37 .     Lord Carnwath said: “230.     ... It seems to me clear that the scheme established by FOIA was intended to be a comprehensive, albeit not necessarily exhaustive, legislative code governing duties of disclosure by the public authorities to which it applied. ... 231.     Further it was designed to create ‘rights’ for the public, enforceable by a simple, specialist and generally cost-free procedure, rather than simply discretionary powers enforceable by the ordinary courts only on conventional public law principles. ... recourse to the courts, even given the flexibility allowed by the developing principles ..., remains more cumbersome (and more costly) than the specialised procedures provided by the Act.” 38.     He was not persuaded that the “open justice” principle applied to inquiries and found it hard to accept that any general powers of disclosure were comparable to the scope of disclosure from which Mr Kennedy would benefit under Article 10 of the Convention. He added: “247.   ... I remain unpersuaded that domestic judicial review, even adopting the most flexible view of the developing jurisprudence, can achieve the same practical effect in a case such as the present as full merits review under FOIA or the HRA.” (ii)     The discussion of the applicability and scope of Article 10 39.     Notwithstanding the majority view that Article 10 was not relevant to the outcome of the appeal, there was detailed discussion by the Justices of this Court’s case-law. 40.     The majority referred to the Court’s inconsistency as regards the extent to which a general right of access to information arose under Article   10. They pointed out that older judgments, a number of which had been adopted by the full plenary Court or the Grand Chamber, indicated that Article   10 only protected the right to receive information which others wished or were willing to impart and did not give rise to a general right of access to information (citing, for example, Leander v. Sweden , 26   March 1987, Series A no. 116; Gaskin v. the United Kingdom , 7 July 1989, Series   A no. 160; Guerra and Others v. Italy , 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I; and Roche v. the United Kingdom [GC], no.   32555/96, ECHR 2005 ‑ X). Although a number of recent Chamber judgments had departed from this position, the majority Justices were of the view that they had failed to give a clearly reasoned analysis of the matter or to explain why they had departed from earlier authority (citing Sdružení Jihočeské Matky v. the Czech Republic (dec.), no. 19101/03, 10 July 2006; Társaság a Szabadságjogokért v. Hungary , no. 37374/05, 14 April 2009; Kenedi v. Hungary , no. 31475/05, 26 May 2009; Shapovalov v.   Ukraine , no.   45835/05, 31 July 2012; Youth Initiative for Human Rights v.   Serbia , no.   48135/06, 25 June 2013; and Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria, no. 39534/07, 28   November 2013). The majority also referred to the fact that the new approach that these recent Chamber judgments appeared to follow had not been endorsed by the Grand Chamber. Therefore, while they accepted that Article 10 recognised a right in the citizen not to be impeded by the State in the exercise of such right of access to information as he might already have under domestic law, they considered that it did not itself create such a right of access. 41.     The minority, on the other hand, considered that in light of the aforementioned case-law of this Court, a right to require an unwilling public authority to disclose information could arise under Article 10 of the Convention. 3.     The subsequent request for access to information 42.     On 1 May 2014 Mr Kennedy submitted a request for information in relation to the Mariam Appeal inquiries to the Charity Commission citing his common law right of access, as identified by the Supreme Court. He explained that disclosure would be in furtherance of the Charity Commission’s duties and was required under the open justice principle. 43.     The Charity Commission holds over 1,000 documents, running to over 10,000 pages of information, in relation to the Mariam Appeal inquiries. Following receipt of Mr Kennedy’s request, it identified 775 documents that fell within the terms of the request. 44 .     As Mr Kennedy had expressed a wish to receive whatever information was disclosable to him at that stage and receive further information once the Commission had conducted a full analysis, on 11   July 2014 the Charity Commission disclosed some relevant documents under the Charities Act 2011 (which had meanwhile replaced the Charities Act 1993). The letter made it clear that the Commission anticipated making further disclosure following a further analysis of the information held. Consequently, on 17 October 2014 the Charity Commission provided further disclosure to Mr Kennedy. The ommission confirmed in its covering letter they it was actively considering whether there was additional information that could be provided. Further disclosure was subsequently provided to Mr Kennedy on 26 February 2016. The letter set out the following reasons for withholding the remaining information: (a)     The information is covered by Legal Professional Privilege and it is not in the public interest to disclose it. (b)     The information is covered by Parliamentary Privilege and it is not in the public interest to disclose it. (c)     The information is personal information within the meaning of the Data Protection Act 1988, the subject has not consented to the information being disclosed, and it would not be in the public interest to disclose it. (d)     The Commission has a duty of confidence in respect of the specific information and it would not be in the public interest to disclose it. (e)     Disclosure of the information would not be in the public interest because it would prejudice the Commission’s ongoing ability to perform its statutory functions, objectives and duties; in particular its ability to promote legal compliance by charity trustees, to identify and investigate misconduct or mismanagement in the administration of charities; and/or to exercise our power to take remedial or protective action in connection with mismanagement or misconduct. (f)     The information has been withheld for one of the reasons set out at (a)-(e) above, but disclosing that reason would not be in the public interest. 45 .     In total, 624 documents were disclosed, although some were redacted. In its letter of 26 February 2016 the Charity Commission advised Mr   Kennedy that if he required further clarification in respect of any matter arising from the contents of the letter or the documents disclosed to him, he should contact the Commission, which would be happy to assist. 46 .     On 11 July and 17 October 2014 Mr Kennedy published two articles based on information disclosed by the Charity Commission. 47 .     Mr Kennedy did not seek judicial review of the refusal to disclose the remaining information. In his application form to this Court, he explained that an application for judicial review would have added to the unreasonable delay that had occurred and to the enormous legal costs already incurred. He added that he was now out of time to pursue judicial review proceedings. Moreover, to require him to pursue judicial review would constitute an excessive and disproportionate burden on the applicants’ enjoyment of the right to freedom of expression and, having regard to liability for legal costs already incurred and at stake in further litigation, would also amount to a violation of Articles 6, 10 and 13 of the Convention. B.     Relevant domestic law and practice 1.     The Freedom of Information Act 2000 (a)     The duty to disclose 48 .     Section 1 FOIA creates a general right of access to information held by public authorities. It provides: “(1)     Any person making a request for information to a public authority is entitled— (a)     to be informed in writing by the public authority whether it holds information of the description specified in the request [“the duty to confirm or deny”], and (b)     if that is the case, to have that information communicated to him.” 49.     Section 2(2) provides that in respect of any information which is “exempt information” under the Act, there is no duty to disclose information if it benefits from an “absolute exemption” or, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Section   2(3) clarifies that section 32 is to be regarded as conferring an absolute exemption. (b)     Exemptions 50 .     Section 32 is headed “Court records, etc.” and provides in so far as relevant: “(1)     Information held by a public authority is exempt information if it is held only by virtue of being contained in— (a)     any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter, (b)     any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or (c)     any document created by— (i)     a court, or (ii)     a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter. (2)     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.” 51.     Section 32(4)(c) explains that “inquiry” means “any inquiry or hearing held under any provision contained in, or made under, an enactment”. 52.     Section 21(1) states that information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information. Section 21(2)(b) clarifies that information is to be taken to be reasonably accessible to the applicant if it is information which the public authority or any other person is obliged by law to communicate to members of the public on request. According to section 21(3), information which is held by a public authority and does not fall within subsection (2)(b) is not to be regarded as reasonably accessible to the applicant merely because the information is available from the public authority itself on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme. 53 .     Section 63 removes a number of exemptions, including the section   32 exemption, in the case of “historical records”. Section   62(1) provided at the relevant time that a record became a “historical record” at the end of the period of thirty years beginning with the year following that in which it was created. (c)     Preservation of other powers of disclosure 54 .     Section 78 FOIA provides that nothing in the Act is to be taken to limit the powers of a public authority to disclose information held by it. (d)     The pre-enactment history 55.     Prior to the publication of the bill that was to lead to FOIA, the Government published a white paper called “Your Right to Know: the Government’s Proposals for a Freedom of Information Act” (December 1997). The white paper explained that the traditional culture of secrecy would only be broken down by giving people in the United Kingdom the legal right to know. The “fundamental and vital change” in the relationship between government and governed was “at the heart” of the white paper. 56.     A report called “Freedom of Information: Consultation on Draft Legislation” presented to Parliament by the Secretary of State for the Home Department in May 1999 stated: “2.     ’Freedom of Information’ is an essential component of the Government’s programme to modernise British politics. This programme of constitutional reform aims to involve people more closely in the decisions which affect their lives. Giving people greater access to information is essential to that aim. The effect of Freedom of Information legislation will be that, for the first time, everyone will have the right of access to information held by bodies across the public sector. This will radically transform the relationship between government and citizen.” 57 .     During the Committee stage in the House of Commons, the Minister explained the purpose of section 32 as follows: “Essentially this is an issue of separation of powers. The courts control the documents that are before them and it is right that our judges should decide what should be disclosed. ... Although the courts are not covered by the Bill, according to it court records may be held on a court’s behalf by public authorities... Statutory inquiries have a status similar to courts, and their records are usually held by the Department that established the inquiry. The clause therefore ensures that the courts can continue to determine what information is to be disclosed, and that such matters are decided by the courts and fall within their jurisdiction, rather than the jurisdiction of this legislation. Of course, it is not to be assumed that such information will not be disclosed merely because the Bill will not require it to be disclosed. Such information is controlled by the courts, which constitute a separate regime. The courts have their own rules, and they will decide if and when court records are to be disclosed. The Government do not believe that the Freedom of Information Bill should circumvent the power of the courts to determine their disclosure policy. The issue is the separation of powers, and the jurisdiction to determine the information the court should provide will be left to the courts themselves. In a court case, it is for judges and courts to determine when it is appropriate for court records to be disclosed.” 2.     The Charities Act 1993 58 .     The Charity Commission was at the relevant time subject to the Charities Act 1993. It was replaced by the Charities Act 2006 and, subsequently, the Charities Act 2011. (a)     The objectives 59.     Section 1B set out the Charity Commission’s objectives. These included a “public confidence objective”, a “compliance objective” and an “accountability objective”. Section 1B(3) defined these objectives as follows: “1.     The public confidence objective is to increase public trust and confidence in charities. ... 3.     The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities. ... 5.     The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public.” (b)     The general functions 60.     Section 1C set out the Charity Commission’s general functions. They included obtaining, evaluating and disseminating information in connection with the performance of any of the Charity Commission’s functions or meeting any of its objectives. (c)     The general duties 61.     Section 1D dealt with the Charity Commission’s general duties, detailed in section 1D(2). The duties included the following: “4.     In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed).” (d)     Powers 62.     Section 1E(1) provided that the Charity Commission had power to do anything which was calculated to facilitate, or was conducive or incidental to, the performance of any of its functions or general duties. 63 .     Section 8 of the Act provides for a general power to institute inquiries into charities. Section 8(6) provided: “Where an inquiry has been held under this section, the Commissioners may either— (a)     cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as they think fit, to be printed and published, or (b)     publish any such report or statement in some other way which is calculated in their opinion to bring it to the attention of persons who may wish to make representations to them about the action to be taken.” 64 .     Section 10A(1) of the Act contained an express power, subject to conditions set out in section 10(2) and (3), for the Charity Commission to disclose to any relevant public authority any information received by the former in connection with any of its functions, provided that the disclosure was made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or that the information so disclosed was otherwise relevant to the discharge of any of the functions of the relevant public authority. 3.     The Inquiries Act 2005 65.     The Inquiries Act 2005 enables Ministers to set up formal, independent inquiries relating to particular events of public concern. 66.     Section 18 of the Act provides that documents provided to the inquiry are to be publicly available, subject to any specific restrictions imposed. Section 19 of the Inquiries Act allows the inquiry chairman or the Minister to impose restrictions on disclosure of documents provided to an inquiry. Pursuant to section 20(5), and subject to section 20(6), restrictions continue in force indefinitely unless otherwise stated in the notice imposing the restrictions. 67.     The Inquiry Rules 2006 oblige the chairman of any inquiry set up under the 2005 Act to transfer custody of the inquiry record to the relevant Government department or public records office at the end of the inquiry. The absolute exemption from disclos