The right to receive information; journalists and inquiries

21 March 2012 by David Hart KC

Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment

Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act  (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.

   This bit of Article 10 is rather less well known than the right to free expression, though receiving sufficient information enables the truly free expression which is effective journalism. Put the other way round, no journalist can write anything interesting if all they are fed with is governmental press releases. And the boundaries of the right to receive information are still being worked out at the moment. It is pretty clear that the State cannot stop someone talking to a journalist. But rather less clear when the State can and cannot prevent providing that journalist with documents held by the State. ECtHR cases during the late 1980s and 1990s gave no encouragement towards the latter obligation – there was no positive obligation to collect and disseminate information of its own motion, as the environmental case of Guerra put it, and the former soldier (Roche) who wanted to know what had being going on at Porton Down whilst he was there received a similar dusty answer. Compare the similar response from Strasbourg in Article 8 environmental claims about information, as I noted in my post about Hardy & Maile. But bits of the Strasbourg Court have recently taken a rather different view about Article 10. Hence in Tarsasag, the Court said this:

35.  The Court recalls at the outset that “Article 10 does not … confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual” (Leander v. Sweden,…) and that “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.)…). Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” …thereby towards the recognition of a right of access to information.

36.  In any event, the Court notes that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” (Leander, op. cit., § 74). It considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. In this connection, a comparison can be drawn with the Court’s previous concerns that preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny…. Moreover, the State’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The Court notes at this juncture that the information sought by the applicant in the present case was ready and available … and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant.

You will readily see the problem – how to square this presumption of a free flow of information with the complicated rules (coming, as ever, from the EU) under which the State is or not compelled to produce information. Back to the case. The CA was hearing an appeal in which the journalist said that s.32(2) FOIA, by reason of its blanket ban on the production of inquiry documents, offended his Article 10 rights. All had been looking good for the journalist; he had won before the First Tier Tribunal on the basis that Tarsasag had changed the rules. His guns were rather spiked, however, when Sugar v. BBC  (and Adam’s post here) had been decided by the Supreme Court a few days before his case got to the CA. The late Mr Sugar sought production of a report commissioned by the BBC into whether the BBC was or was not biased towards Palestine in its news coverage. In the course of dismissing this appeal, Lord Brown downplayed the importance of Tarsasag and the Strasbourg cases which followed it

In my judgment these three cases fall far short of establishing that an individual’s article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents. Of course, every public authority has in one sense “the censorial power of an information monopoly” in respect of its own internal documents. But that consideration alone cannot give rise to a prima facie interference with article 10 rights whenever the disclosure of such documents is refused.

The CA felt it was bound by the Supreme Court’s account of what the ECHR meant by this and the preceding cases. In doing so, it trailed the divergence between the late Lord Bingham’s and Lord Brown’s approaches to Strasbourg decisions – the former had said in Ullah that the domestic courts had to keep pace with the ECtHR “no more, but certainly no less”, whereas Lord Brown in Al-Skeini switched the apothegm around “no less, but certainly no more.”

So the CA ruled that the journalist had no Article 10 rights in this context. Given that the ordinary meaning of s.32(2) was to prevent blanket disclosure of any inquiry documents, that seemed to be that. But the CA plainly felt disquiet about the outcome. At a previous hearing in the CA, Jacob LJ had remarked that the “absurdity” arising from s.32(2) is that

” it allows all information deployed in a statutory inquiry (other than one under the Inquiries Act 2005) to be kept secret for 30 years after the end of the inquiry, regardless of the contents of the information, the harmlessness of disclosure, the public interest in disclosure and the willingness of those who deployed the material in the inquiry that it should be published.”

And the CA, unusually, granted permission to appeal to the Supreme Court. Not all the Justices in Sugar were quite of Lord Brown’s opinion, and the CA plainly thought that there were two genuinely held sides of the argument as to what the Strasbourg cases really meant. Not entirely surprising that, as the ECtHR does rather seem to lurch from one stance to another, leaving the domestic courts doing their best to reconcile what, on occasions, is the irreconcilable.

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