Tribunal Upholds Decision Upholding Information Commissioner's Refusal to Disclose Charity Oversight Details

Citation: [2023] UKFTT 1037 (GRC)
Judgment on

Introduction

The First-tier Tribunal (General Regulatory Chamber) on Information Rights delivered a decision in the case of Scolt Head and District Common Rightsholders Association v Information Commissioner & Anor [2023] UKFTT 1037 (GRC). The case involves an appeal against a decision notice by the Information Commissioner’s Office (ICO) upholding a refusal to disclose certain information by the Charity Commission for England and Wales (CC). The information pertained to dealings with the Burnham Overy Harbour Trust, a registered charity. The legal principles involved centre on the application of the Freedom of Information Act 2000 (FOIA), particularly the exemptions under Section 31 related to law enforcement and the proper execution of the Commission’s regulatory functions.

Key Facts

The dispute has a historical context where the Scolt Head and District Common Rightsholders Association (SHDCRA) has longstanding issues with the Harbour Trust’s management of certain common lands and the levy of charges for boat launching and moorings. SHDCRA had sought information from the Charity Commission regarding its oversight of the Trust, suspecting illegal acts and arguing for the Commission’s failure to carry out due diligence upon the Trust’s establishment in 1982.

The request for information made by Mr. Cooke (secretary of the SHDCRA) from the CC was denied on the grounds of exemptions relating to the law enforcement functions of a public authority (s31 FOIA). Despite subsequent ICO investigation and partial disclosures, the CC maintained its position, which was upheld in the ICO’s decision notice.

The central legal principle involved is the FOIA and its balance between transparency and protection of certain information that, if disclosed, would potentially affect the operations of public authorities. Specifically, Section 31 of the FOIA addresses exemptions aimed at safeguarding the functions of public authorities in ascertaining compliance with the law and protecting charities against misconduct or mismanagement.

In this case, the Tribunal focused on whether the ICO decision notice was lawfully upholding the CC’s reliance on the s31 exemption. The decision notice and the Tribunal’s interpretation were that disclosure could undermine the CC’s ability to effectively regulate, as it relies on confidential information provided by charities, trustees, and third parties. The disclosure was deemed to be likely to prejudice the functions of the CC and, by extension, public trust in regulatory processes and charities.

Furthermore, a property dispute was recognized, where the Commission’s jurisdiction is limited per s70 of the Charities Act 2011, which disallows the Commission from determining the title to any property in disputes like the one at hand.

Outcomes

The Tribunal upheld the decision notice, emphasizing that the appeal does not centre on resolving the property dispute between SHDCRA and the Trust but on the lawfulness of withholding information under s31 FOIA. The Tribunal recognized the ICO’s conclusion that the public interest in transparency was outweighed by the risk of harming the Commission’s function and the potential deterioration in public trust.

Conclusion

The Scolt Head and District Common Rightsholders Association v Information Commissioner & Anor case reaffirmed the delicate balance that public authorities must strike when handling information requests. The Tribunal’s decision underscores how exemptions under FOIA, specifically those relating to law enforcement and public authority functions, can legitimately be utilized to withhold information. Even where there is considerable local interest in transparency, the broader public interest in maintaining the integrity and efficacy of regulatory processes can take precedence. As such, the Tribunal’s dismissal of the appeal substantiates the position that access to disclosed information under FOIA can be restricted where a greater public interest is served by maintaining confidentiality.

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