The Charity 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 next month.
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 29 October, a spokeswoman for the commission said.
Rupert Earle, a partner at the law firm Bates Wells Braithwaite, which is representing Kennedy, said it would argue that the commission had incorrectly interpreted section 32 of the Freedom of Information Act by saying that the information gathered during a statutory inquiry was exempt from disclosure for up to 30 years after the inquiry had closed.
He said it would argue that information should not be exempt from disclosure once an inquiry had closed. "If you read the section properly, our interpretation is correct," he said.
Earle said it could also argue that the commission’s interpretation of the act breached Kennedy’s article 10 right – the right, under the European Convention on Human Rights, to receive and impart information. But Earle said that this argument might not be covered in court. "We say we don’t need to get to the article 10 argument" he said.
The commission spokeswoman said: "The Court of Appeal’s judgment, issued on 20 March 2011, dismissed Mr Kennedy’s appeal and confirmed that the commission is entitled to rely on the exemption in section 32(2) of the Freedom of Information Act 2000 to refuse a request for disclosure of documents, and this position is not altered by the right to freedom of expression under the European Convention on Human Rights."
She said that the Ministry of Justice had joined in the case as an intervener "given the potential impact of the decision on the convention right to freedom of expression."
The Media Legal Defence Initiative, a charity that helps journalists to defend their rights, and the Campaign for Freedom of Information have also applied to the Supreme Court for permission to intervene in the case.
A spokesman for the Campaign for Freedom of Information said it would also argue that the exemption contravened article 10 of the European Convention of Human Rights, in light of recent decisions made by the European Court of Human Rights in Strasbourg.
He said the two organisations were hoping to help strengthen the article 10 argument. "We hope it will strengthen the public interest in the case," he said.