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Diigo newsmarks 02/20/2012

二月 20, 2012
  • tags: y英国 p判例 o欧洲人权法院判例 x信息公开与言论自由 1′

    • It is a decision that could have wide consequences for information rights in the UK.
    • the premier Information tribunal has found this violates EU law
    • The First Tier Tribunal (Information Rights) was ordered to consider whether courts had an obligation to interpret the FoIA so that it was consistent with EU law, a process known as ‘reading down’.
    • Lord Justice Ward reluctantly upheld the Tribunal’s previous ruling, which said the wording allowed such information to be blocked up to the thirty year limit allowed under FOIA section 63.

       

      But a last-minute submission from Kennedy forced the court to consider its ruling in the light of new EU case law – causing Lord Justice Ward to refer his initial judgment to the Tribunal.

    • According to his report, the Information Commissioner says that Article 10 rights enforced in this way could apply to other ‘absolute exemptions’ outlined in the FOIA.
  • tags: y英国 p判例 o欧洲人权法院判例 x信息公开与言论自由 1′

  • tags: y英国 p判例 o欧洲人权法院判例 x信息公开与言论自由

    • S.32 FOIA applied where information was held by a public authority only by virtue of having been contained in any document filed with a court for the purposes of proceedings. The Tribunal applied the reasoning of the First-Tier Tribunal’s “Report to the Court of Appeal” in Kennedy v The Charity Commission EA 2008/0083 and ruled that s.32 FOIA needed to be construed in light of Article 10 of the Human Rights Act 1998 which provides the right to freedom of expression. In Kennedy, the Tribunal had ruled that a conventional interpretation of s.32 constituted an interference with the requestor’s Article 10 rights, not least because the requestor was an investigative journalist. This followed recent jurisprudence of the European Court of Human Rights which had emphasised the particular importance of the freedom to receive information where the press was concerned (Tarasag a Szabadsagjogokert v Hungary (2009) ECHR 618 and Kenedi v Hungary (2009) ECHR 786).

       

      Applying the reasoning in Kennedy to Mr Cobain’s request, the Tribunal ruled that to apply a complete prohibition on accessing material held in court records for thirty years (at which point the material would become historical records, available under the “30 year rule”) would amount to a breach of Article 10. Construing s.32 in light of Article 10 meant limiting s.32 so that its applicability ended once a reasonable time had elapsed after the exhaustion or abandonment of the available appeal process. In this case, this meant that sufficient time had elapsed since the proceedings so that the s.32 exemption did not apply.

    • The judgment is also significant in demonstrating the importance of the fact that the requestor was an investigative journalist. It is typically said that FOIA is “applicant blind”, but the Tribunal here clearly regarded the fact that Mr Cobain was an investigative journalist as significant, applying the approach of the First-Tier Tribunal’s Report to the Court of Appeal in Kennedy v The Charity Commissioner and the decision in A v Independent News and Media Ltd. EWCA Civ 343. This recognition of the particular public interest in journalists accessing information may therefore prove a useful tool for journalists seeking access to information under FOIA. Journalists may therefore, where applicable, wish to stress their role as a journalist at the outset when seeking information under FOIA.
  • tags: y英国 p判例 o欧洲人权法院判例 x信息公开与言论自由

    • in this context, I note a number of forthcoming cases in which related issues concerning the applicability of Article 10 in the FOIA context will be considered.
    • Those are Evans v 7 Government Departments and IC (EA/2010/0014) (judgment of UT awaited – involving Jonathan Swift QC, Tim Pitt-Payne QC and Julian Milford of 11KBW); Kirkhope v IC and National Archives (EA/2011/0185) (part-heard in the FTT – involving Jonathan Swift QC, Amy Rogers, Robin Hopkins and Joe Barrett of 11KBW); Kennedy v Charity Commission (due to be heard in the Court of Appeal on 21/22 February 2012 – involving Karen Steyn, Ben Hooper and Rachel Kamm of 11KBW); APPGER v ICO and FCO (due to be heard in the FTT on 27/28 February 2012, involving Karen Steyn, Joanne Clement and Robin Hopkins of 11KBW); R(Guardian News) v City of Westminster Magistrates Court (heard in the Court of Appeal on 7 February 2012 – judgment reserved).

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