Charities should review implications of the Freedom of Information Act, lawyer says

Alison Paines of Withers solicitors says a case in the Supreme Court this week highlights how sensitive information might be made public

Alison Paines
Alison Paines

Charities should reconsider the type of information they supply to the Charity Commission, in the light of an upcoming court case into whether the regulator should release the details of one of its past investigations, a charity lawyer has warned.

The commission’s decision not to release details of its investigation into the fundraising organisation the Mariam Appeal, which was set up by the MP George Galloway, will be challenged at the Supreme Court tomorrow.

Alison Paines, a partner at the law firm Withers, said the case might encourage charities to "review the basis on which they provide information" to the commission, given that it is a public body and subject to the requirements of the Freedom of Information Act.

In 2007 the commission published a report about the appeal that said it had taken donations from "improper sources" connected with the Iraqi Oil for Food programme, set up while Iraq was subject to UN sanctions during the Saddam Hussein regime.

Galloway, the Respect Party MP for Bradford West, said at the time that the report was "sloppy, misleading and partial".

Dominic Kennedy, a journalist at The Times newspaper, used the Freedom of Information Act that year to ask the regulator to publish information it had gathered during the course of its three inquiries into the Mariam Appeal. The commission declined to do so on the grounds that a legal exemption applied to information obtained during a statutory inquiry. 

The commission’s position was upheld in hearings with the Information Commissioner, the information tribunal and the High Court. In March last year the Court of Appeal also upheld the commission’s decision not to publish the documents, but gave Kennedy permission to appeal to the Supreme Court. The case is due to be heard at the Supreme Court from tomorrow.

Paines said the public interest reasons for the commission maintaining the confidentiality of the documents after its inquiry ended were a key point of debate.

"Beyond that relatively narrow point, the case provides a timely reminder for charities of the consequences of the commission's status as a public body," she said.

"It may be an encouragement for them to review the basis on which they provide information that might include sensitive or potentially damaging material, or that they would not want to be publicly available, to their regulator, even outside the course of formal inquiries.

"Charities will be watching the case closely to see how their regulator fares, but might wish to review their operational procedures whatever the final decision."

She said charities are required to make "serious incident reports" about anything that has the potential to damage their reputation, such as when police, another regulator or the Health and Safety Executive became involved.

"This could be fraud, an incident involving a member of staff or an incident involving a beneficiary," she said. "If you submit a report like this, you should be aware that the commission is susceptible to the Freedom of Information Act, and make it clear that it is confidential information."

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