Kennedy v Charity Commission [2014] UKSC 20

C was a journalist who appealed the decision that D, the Charity Commission, was not permitted to disclose the documents under the Freedom of Information Act 2000 which included information regarding an inquiry. D argued that disclosure was not permitted given that the documents were exempted under section 32(2) of the Act, and that they could only be disclosed once they were categorised as historical records 30 years later. C, however, argued that the exemption as alleged by D was invalid and instead subsisted for the duration of the inquiry. C subsequently made an application for judicial review, based on a breach of Article 10 ECHR pertaining to freedom of expression.

Was the information in the documents permitted or were they exempt under section 32(2). If the documents were indeed exempt, is the exemption compatible with freedom of expression under Article 10 ECHR to receive the information?

The Supreme Court dismissed Kennedy’s appeal under the Freedom of Information Act. The majority held that the section 32 inquiry-material exemption continued after the inquiry concluded, subject to the statutory scheme. It nevertheless stressed that the exemption did not close other disclosure routes. The Charity Commission’s statutory functions and common law obligations could require proper consideration of transparency and disclosure, with judicial review of a refusal. The majority did not accept the proposed Article 10 basis for rewriting the FOIA provision. The decision is not authority that Convention rights can never inform statutory interpretation, nor that exempt inquiry documents must always remain secret. It identifies distinct legal routes and context-sensitive public-law scrutiny.

A FOIA exemption does not necessarily prohibit disclosure under other statutory or common law powers. Kennedy held that the inquiry-material exemption survived the inquiry’s end, while emphasising separate disclosure responsibilities and judicial scrutiny informed by transparency and the particular legal context.

Kennedy emphasises that freedom-of-information legislation is not always the only route to obtaining official material. A statutory exemption from that scheme may coexist with disclosure powers and duties under other legislation and the common law. It also illustrates context-sensitive judicial scrutiny where transparency is at stake. The judgment did not hold that Article 10 can never affect statutory interpretation. Later Strasbourg authority on access to information must be considered before stating the majority’s historical Article 10 analysis as the final word.