The Grand Chamber of the European Court of Human Rights has found that Article 10 of the European Convention on Human Rights includes a right to information held by a public authority in certain circumstances – Magyar Helsinki Bizottsag v Hungary (Application no: 18030/11).

The Court held that the right may arise:-

1. Where disclosure of the information has been required by judicial order but is being frustrated by another arm of the state; and/or

2. In circumstances where access to information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular the freedom to receive and impart information and where its denial constitutes interference with that right.

Relevant criteria in the second case (with which this application was concerned) include:
(1) the purpose of the request, was it necessary to enable the requester to exercise the freedom to receive and impart information and ideas to others, to contribute to public debate;
(2) whether the information sought meets a public interest test (not a mere wish for sensationalism or voyeurism);
(3) do those seeking the information discharge a public watchdog role, such as a journalist, NGO, academic researcher or blogger; and
(4) is the information ready and available in the hands of the public authority (or would be but for the authority’s poor practices).

In this case, Magyar Helsinki Bizottsag (MHB), a Hungarian NGO, which monitors the implementation of international human rights and standards in Hungary, had been seeking from Hungarian regional police departments the names of counsel selected to represent defendants and the number of cases which they had handled, given concerns that the pool of counsel was too small and was too beholden to the police departments to operate effectively. Two police departments refused to provide the information, on data protection grounds.

The ECHR held that the Hungarian court’s upholding of that refusal was in breach of Article 10. The information was clearly of a public interest nature. The names of the defence Counsel were personal data but disclosure would not negatively affect their privacy rights and anonymised data would not suffice.

The court presents its decision as merely a clarification of existing ECHR jurisprudence, having regard also to the right of access to information in other international instruments and to the fact that in all but one of the 31 contracting states the national legislation recognised a statutory right of access to information and/or official documents held by public authorities, aimed at reinforcing transparency in the conduct of public affairs. However, the Court’s decision is undoubtedly a significant development in freedom of information law, as Judge Spano noted in his dissenting judgment.

As far as the UK is concerned it means that we now have 3 legal avenues to access information held by public authorities – under the Freedom of Information Act (FOIA) (or Environmental Information Regulations for environmental information and Data Protection Act for one’s own personal information); under the common law right of access to information formulated by the Supreme Court in the Kennedy v Charity Commission (2014 UKSC 20), enforceable via judicial review ; and now under Article 10 by virtue of the Human Rights Act 1998 (unless repealed by the government).

Apart from Hungary, the UK was the only state to contest MHB’s application. It may now concede Mr Kennedy’s application that the Supreme Court’s (majority) decision breached Article 10 (the clunky common law route providing an inadequate substitute). The generally well-structured FOIA regime should give the UK a sufficient protection (or margin of appreciation) against wide ranging challenge, but the absolute exemption for court, tribunal and inquiry information at Section 32 may need to be read such as to cease to apply once the proceedings/inquiry are at an end; and there may be issues concerning whether only those public authorities listed in FOIA are subject to the Article 10 right.

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Rupert Earle

Partner and Head of Media Litigation

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Posted on 10/11/2016 in Legal Updates

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