Mark Watts v The Information Commissioner & Anor

The appellant has submitted replies in relation to the responses of both respondents.

The appellant sets out the procedural history of how the Charity Commission dealt with his requests. He submits that this illustrates its over-zealous use of section 31 in this case.

The appellant submits that the Commissioner has failed to address a number of points made by him in the grounds of appeal.

The appellant clarifies that he has only addressed section 40 and section 41 in case the tribunal finds that section 31 does not apply.

The appellant submits that even if the Charity Commission has now confirmed that it relies on section 31(1)(g) in relation to all the information, the question remains as to why it changed its story.

The appellant submits that the information requested includes, but is not – as suggested by the response of the Commissioner at paragraph 30 – limited to, what the Charity Commission described in its decision of 13.12.22 as “reports and correspondence pertaining” to “six compliance cases into the charity Transparency International UK since 2017.”

The appellant submits that there is a failure to address why there would be or would like be prejudice in relation to the specific information concerned. There is a failure to address what is different about this case compared with previous cases where the Charity Commission has been prepared to disclose comparable information in relation to FOIA requests concerning other charities, such as the five cases cited in the grounds of appeal. There is no evidence that prejudice in fact occurred as a result of those cases, including the well-publicised one concerning the Universal Church of the Kingdom of God (UCKG).

The appellant submits that the narrow interests of the charity concerned is not a proper basis for assessing the public interest. To the extent that there is concern that disclosing information that “is part of a much more detailed body of information and which may give a false impression”, the Charity Commission is capable of disclosing fuller information in order to avoid giving any such misleading impression. The appellant submits that whether disclosure has the potential to damage the reputation of the charity, its trustees or the wider sector – notwithstanding the point that it is inconceivable that it could possibly be true for the last of those – and could lead to defunding is not the correct test under FOIA.

The appellant submits that if disclosure could do anything like approaching such damage it raises the question as to why the public should not know about it.

The appellant disagrees that an absence of statutory protection for the information should imply a greater likelihood of prejudice.

In relation to the public interest the appellant points out the information made public by the Charity Commission does not serve the particularly high public interest in relation to this specific case.

The appellant highlights the “accountability objective” under section 14(5) of the Charities Act, which “is to enhance the accountability of charities to donors, beneficiaries and the general public.” The appellant notes that this is omitted from the reporting policy.

The appellant notes that the Charity Commission’s reporting policy gives the following as an example of when a statement might be released: “There is significant public interest, and/or media coverage of a charity or the commission’s regulatory engagement with the charity on a particular issue.”

The appellant notes that the Charity Commission’s guidance on complaints about charities warns complainants about potential disclosure under FOIA.

The appellant notes that section 15(1)(a) of the Charities Act sets out the function of “Obtaining, evaluating and disseminating information in connection with the performance of any of the Commission's functions or meeting any of its objectives,” which in turn includes the publishing of the register of charities.

The appellant submits that while the Charity Commission states at paragraph 18 of its response that it is “committed to the principle of transparency”, that is not manifest in how it conducted itself through the history of this request.

The appellant submits that the Charity Commission’s has a propensity, including in this case, to take into account its role in increasing public trust and confidence in charities, at the expense of – and while overlooking – its statutory role in enhancing accountability of charities.

The Charity Commission does not explain why disclosure of the specific information would prejudice its ability to regulate charities and why it has not arisen as a result of the five comparable requests cited in the grounds of appeal.

The appellant does not accept that disclosure material from the investigation of regulatory concerns about a charity crosses the bar of being likely to prejudice its functions. It is accepted that the potential for prejudice under s31(1)(g) of the Freedom of Information Act should be considered in relation at least to some of the requested information. To that limited extent is section 31(1)(g) engaged. Nonetheless, it is submitted that the actual risk is negligible, if it exists at all and is hugely outweighed by the public interest in disclosure of the specific information.

The appellant submits that there has been a failure – by both respondents – to consider the public-interest balancing exercise in relation to the specific information requested.

As to the Charity Commission’s claim that the risk is higher in relation to a “larger charity with a higher public profile”, the appellant submits that it is worth comparing the charity concerned with the five bodies cited in the grounds of appeal which are large and have a high or quite high public profile where the Charity Commission took a fundamentally different approach to disclosing comparable information. If the concerns as expressed by the Charity Commission about disclosing information about Transparency International UK were valid, they would have prevented disclosure of information in relation to the other five cases.

The appellant submits that the Charity Commission have failed to address the public interest in disclosure of this specific information.

Section 31 FOIA provides a qualified exemption subject to the public interest test in respect of information relevant to specific areas of law enforcement:

For the purposes of section 31(1)(g), a public authority’s “functions” are any power or duty exercisable by it for a specified purpose whether conferred by or under statute, common law or royal prerogative: Stevenson v Information Commissioner [2013] UKUT 181 (AAC).

The exemption is prejudice based. ‘Would or would be likely to’ means that the prejudice is more probable than not or that there is a real and significant risk of prejudice.

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

We read and took account of an open bundle and a closed bundle and a closed response from the Charity Commission. It was necessary to withhold the closed material from the appellant because otherwise the purpose of the proceedings would have been defeated.

We adjourned our deliberations to order the Charity Commission to provide a gist of the closed response of the Charity Commission. We approved the draft gist. We gave the appellant permission to provide further submissions once he had been provided with that gist.

The tribunal notes that the appellant states in his further closing representations dated 9 July 2024 that he has not been provided with a copy of the open closing submissions of the respondents. For the assistance of the appellant, the tribunal confirms that no open closing submissions were provided by the respondents. The reference to open submissions in the gist are to paragraphs in the Charity Commission’s response which is at page 56 of the open bundle. The tribunal did not consider any open submissions from either respondent that were not contained in the open bundle, other than the gist.

The appellant made written submissions dated 1 December 2023. He submitted that disclosure of the kind of information sought by in this case has not compromised the Charity Commission’s functions to date. He submitted that charities operate in an environment in which they are fully aware that information passed by them – including information passed voluntarily – to the Charity Commission may be disclosed by it to the public at large as a result, inter alia, of a request under the Act. It is submitted that the respondents have only asserted generalised arguments about the risks posed by disclosure and so the exemption is not engaged.

If the exemption is engaged, it is submitted that the tribunal should decide, based on the withheld material whether disclosure would be likely to prejudice the Charity Commission’s functions sufficiently to outweigh the public interest in disclosure.

The appellant noted that the Charity Commission has been inconsistent in relation to whether it relies on section 31 in relation to some or all of the withheld information.

These submissions were filed following the provision of a gist of the Charity Commission’s closed submissions.

The appellant submitted that the Charity Commission refers to the “sensitive quality”, in a generalised way, of information held on its casefiles. He submitted that there is no cogent case as to how disclosure of the specific material in this case would, or would be likely to, prejudice the Charity Commission’s functions.

The Charity Commission hints that there may be particular sensitivity surrounding information supplied by “third parties”, notably “intelligence sources”, about a charity, which the appellant submitted underlines his previous submission that the tribunal could only reach a conclusion that disclosure would, or would be likely to, prejudice the Charity Commission’s functions sufficiently to outweigh the public interest in disclosure by examining the specific information concerned to assess for itself.

It is submitted that the Charity Commission makes only generalised assertions about the public interest balance. It is submitted that it provides no basis for its judgment that any adverse comment would be unjustified, and in any event this is irrelevant to the issues before the tribunal.

The appellant submitted that the Charity Commission is unable to point to any adverse effects from its inadvertent disclosure on 13 December 2022. It is submitted that this underlines the appellant’s submission that disclosure of this kind of information has not prejudiced the Charity Commission’s functions. It is submitted that the Charity Commission is taking a hugely exaggerated view of the risk of prejudice, a risk which the appellant submitted, is in reality non-existent or negligible.

The issues the tribunal has to determine are:

The appellant complains that the Commissioner failed to examine the requested information before making his determination. We conduct a full merits review and consider the matter afresh. We have seen the withheld information and taken full account of it in making our decision.

The appellant complains about the Charity Commission’s ‘track-record’ in repeatedly failing to comply with FOIA and argues that the Commissioner ought to have taken this track-record into account. As we stand in the shoes of the Commissioner we have taken into account matters that we consider relevant. We do not consider the Charity Commission’s ‘track-record’ assists us in determining the issues before us.

The appellant complains that the Charity Commission has changed its position in relation to whether it relies on section 31(1)(g) in relation to some or all of the information. The Charity Commission is entitled to rely on new exemptions before tribunal. We stand in the shoes of both the Commissioner and the public authority when determining the appeal and the question for us is whether or not the exemption is engaged and whether or not the public interest balance favours disclosure. The question of why the Charity Commission changed its position does not assist us in determining these issues.

The first question for us to answer is what is the applicable interest within the exemptions relied upon. Here, the relevant interest is clear on the face of the exemptions. It is the protection of a public authority’s ability to exercise its functions for the purposes set out in the subsections relied on.

The next question is whether the Charity Commission has functions which it exercises for those purposes. A function is a power or duty exercised by a public authority for a specified purpose, whether conferred by or under statute. It includes only those functions assigned to the public authority and does not also include anything conducive or incidental to those functions (DVLA v Information Commissioner[2021] 1 WLR).

On the basis of the statutory framework set out above, we accept that the Charity Commission’s functions include:

We accept that the Charity Commission exercises these functions for the purposes of, inter alia:

The next question is whether the claimed prejudice relates to the applicable interest or purpose.

The first claimed prejudice is that charities would be inhibited from voluntarily disclosing information freely and frankly to the Charity Commission if it became known that this particular information had been disclosed.

The Charity Commission further asserts that disclosure of information related to thematic reviews would disclose the thematic review threads and certain aspects of the information and intelligence sources used for thematic reviews which are not currently in the public domain. The Charity Commission submits that this would also inhibit the supply of information by charities.

We accept that these claimed prejudices relate to the purposes set out in section 31(2)(c), (f) and (g). If charities are inhibited from voluntarily disclosing information freely and frankly to the Charity Commission this would make it more difficult for the Charity Commission to: ascertain if circumstances which would justify regulatory action exist or may arise; protect charities against misconduct or mismanagement; and protect the property of charities from loss or misapplication.

The Charity Commission also asserts that disclosure might cause damage to the reputation of the charity in question. The Charity Commission argues that this relates to the applicable interest because it prejudices the Charity Commission’s ability to fulfil its public confidence objective, its charitable resources objective and protecting charity property. DVLA v Information Commissioner[2021] 1 WLR and Williams v ICO [2023] UKUT 57 (AAC) make clear that a focussed approach should be taken to the specific purposes listed in section 31(2). In our view potential damage to a charity’s reputation does not impact on the exercise of the Charity Commission’s functions for those specified purposes and we have disregarded this asserted prejudice.

In respect of each claimed prejudice, we must determine if causality has been demonstrated between disclosure of the withheld information and the occurrence or likely occurrence of the prejudice claimed, and if the risk of prejudice in the event of disclosure is real and significant.

The withheld information consists of information (reports and correspondence) relating to six compliance cases opened in relation to the charity in question. The information falls broadly into two categories:

This reflects the Charity Commission guidance that compliance cases may be opened reactively or proactively.

In relation to the information relating to the theme-based casework, the Charity Commission argues that disclosure would reveal disclose the thematic review threads and certain aspects of the information and intelligence sources used for thematic reviews which are not currently in the public domain. The Charity Commission submits that this would be likely to prejudice the exercise of their functions for the specified purposes and would be likely to inhibit the supply of information by charities.

We accept that disclosure of the withheld information would reveal some information about the Charity Commission’s thematic review threads and certain aspects of the information and intelligence sources used for thematic reviews. We accept that this information is not currently in the public domain. We accept that charities would be likely to be less free and frank in the routine provision of information to the Charity Commission if they were aware of this information. Further we accept that it would be likely to make the Charity Commission’s exercise of its intelligence gathering functions more difficult if this information, including information about certain thematic review threads was widely known.

For those reasons we accept that there is causative link and we are satisfied that there is a real and significant risk of prejudice.

In relation to the withheld information that relates to information provided by a charity, the Charity Commission argues that the factual content of this information is particularly sensitive.

This part of the withheld information relates to three matters raised by a charity with the Charity Commissioner. It is not possible to provide details of the facts of these three matters, but we have read the information and taken this into account.

Having reviewed the withheld information we accept that the factual nature of these matters is particularly sensitive. In our view there is a clear causative link between disclosure of this information and an impact on the willingness of other charities in the future to provide full, free and frank disclosure of information to the Charity Commission. It is not suggested that charities would not provide any information to the Charity Commission, but we accept that they there is real and significant risk that they would provide less detailed information and be less candid in their disclosure. This, in our view, would clearly carry a real and significant risk of prejudice to the Charity Commission’s ability to exercise its functions for the relevant purposes.

The Charity Commission accepts that it has disclosed information about its case work previously, but it submits that this is because it considers disclosure on a case by case basis, and argues that it is the particular sensitive content of the requested information in this case that would be likely to cause the asserted prejudice. We accept that it is the particularly sensitive nature of this information what would be likely to lead to the asserted chilling effect.

We accept that the Charity Commission does have wide information gathering powers, however we acknowledge that if the Charity Commission could only obtain information from charities by way of a formal order, it would receive less information, would be able to deal with fewer cases and would not be able to work as effectively by means of open and free flowing discussion.

We conclude accordingly that the exemption in section 31(1)(g) is engaged.

There is a clear strong public interest in the Charity Commission being able to operate as a effective regulator. There is a clear strong public interest in this sector being effectively regulated. It is in the public interest that charities are encouraged to give full and frank disclosure to the regulator in a safe space.

We accept that there is a general public interest in transparency in relation to compliance cases opened by the Charity Commission. This is served to some extent by the Charity Commission’s reporting policy under which it publishes statements about its regulatory cases where this would be in the public interest or would increase public trust and confidence in charities. We accept that there is some enhanced public interest in transparency in relation to this particular charity, in part because of the matters contained in the media reporting we have been referred to and in part because it has fallen within the Charity Commission’s thematic review threads. This increases the public interest in disclosure.

Having weighed all the different factors in the balance we have concluded in all the circumstances of this case that the public interest in maintaining the exemption outweighs the public interest in disclosure.