Supreme Court rejects journalist's appeal on Charity Commission documents

But it says the regulator could release information about its inquiries into the Mariam Appeal under common law - Dominic Kennedy of The Times is likely to now take that route

Dominic Kennedy
Dominic Kennedy

The Supreme Court has rejected an application from a journalist at The Times newspaper that the Charity Commission should disclose documents relating to three inquiries it carried out into a charity set up by George Galloway, the Respect MP for Bradford West.

But the court’s judgment, published today, also says that the commission should consider releasing the information under common law, meaning that the regulator might still have to supply the documents requested.

Dominic Kennedy asked the commission in 2007 to release under the Freedom of Information Act information the regulator had gathered during three inquiries it had carried out between 2003 and 2005 into the Mariam Appeal.

The regulator published a report in 2007 about the appeal that said it had taken donations from "improper sources" connected with the United Nations’ Oil for Food Programme, set up while Iraq was subject to UN sanctions during the regime of Saddam Hussein.

Galloway said at the time that the report was "sloppy, misleading and partial".

The commission declined to release the information requested by Kennedy on the grounds that a legal exemption applied to information obtained during a statutory inquiry. Kennedy argued that the exemption had finished at the conclusion of the inquiry.

The commission’s position was upheld in hearings with the Information Commissioner, the information tribunal and the High Court, and the case went before the Supreme Court in October.

In a judgment published today, the Supreme Court rejected Kennedy’s argument that the exemption used by the commission should no longer apply.

But it also found that, under common law, public bodies discharging judicial or quasi-judicial functions, such as statutory inquiries, should be accountable and transparent.

This means that Kennedy will be able to request the information outside the scope of the Freedom of Information Act.

Rupert Earle, a partner at the law firm Bates Wells Braithwaite, acting for Kennedy, said that the journalist would this week submit a fresh application for the information under common law.

He said the regulator would be bound to give serious consideration to releasing the documents and would carry out a "balancing exercise" in which it would consider aspects such as whether releasing the information would prejudice future inquiries, expose personal data or breach confidentiality.

He said the court had ruled that if Kennedy was not satisfied with the regulator’s response, he would be able to apply for a judicial review of the decision.

The commission said in a statement that it would carefully consider the opinions of the court and assess future requests for disclosure of information in light of its ruling.

Kenneth Dibble, chief legal adviser and head of legal services at the Charity Commission, said he was pleased the court had rejected the appeal.

"We endorse and support the principles of freedom of information, but we have to balance the need for transparency with the need to conduct effective inquiries in the public interest that uncover mismanagement and wrongdoing in charities," he said. "That is why the exemption upheld by today’s judgment is so important. Ultimately, this will help us uphold public trust and confidence in charities."

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