In an article appearing on this website yesterday, Alison Paines of Withers Solicitors suggested that, in light of a Supreme Court hearing this week, charities should review their approach to sharing information with the Charity Commission.
This is a reference to the appeal before the Supreme Court, brought by the Times journalist Dominic Kennedy, who is challenging the commission’s use of an exemption under the Freedom of Information Act that allows us to withhold information held as part of a statutory investigation after the inquiry has ended.
The hearing begins today. Mr Kennedy had requested information held by the commission that arose as a result of a statutory inquiry into a charity called the Mariam Appeal. We declined, relying on a number of exemptions, including s32(2), which allows us not to disclose information when it is held for the purposes of an inquiry. The key question that the Supreme Court is looking at is whether the inquiry exemption can be used only until the inquiry ends or whether it remains until the information/documents become historical records.
The article by Paines said that, regardless of the outcome of the case, charities should "reconsider the type of information they supply to the Charity Commission". It is suggested the case serves as a "timely reminder for charities of the consequences of the commission's status as a public body".
There can be no question of charities refusing to release information or material to the commission as charity regulator if this is needed for the purpose of discharging its regulatory functions, particularly if needed for the purposes of a statutory inquiry. Even outside of a formal inquiry, trustees have a duty to cooperate with the commission as regulator, including by complying with requests for information. This is not optional.
If trustees do feel our use of formal powers to request information or documents is unreasonable, they can challenge our request in the charity tribunal. In other cases where trustees are seeking specific guidance or advice in a particular matter, they can expect the commission to continue to request what documentation is necessary for them to give proper consideration to the matter. Trustees should also continue to report serious incidents to the commission; we expect full and frank disclosure by trustees.
It is important to note that the Freedom of Information Act contains a number of other exemptions that ensure information of a confidential or personal nature, or which compromises the commission’s regulatory work or its relations with other governmental bodies, can be and is regularly relied upon by the commission to protect information that it holds.
The commission’s decision to apply the particular exemption here has already been upheld by the Information Commissioner, the information tribunal, the High Court and the Court of Appeal. Should the commission be unsuccessful before the Supreme Court, charities should not fear that everything and anything can be made freely available. And regardless of the outcome of this case, trustees will continue to have a duty to share relevant information with the commission where it is appropriate to do so.
Kenneth Dibble, chief legal adviser and head of legal services, Charity Commission