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Magazine of the Chartered Institute of Journalists

Breakthrough on journalism FOI rights at Strasbourg

Towards the end of 2016 the European Court of Human Rights at Grand Chamber level made a ruling on freedom of information which should liberate the role of journalists and researchers investigating the past.

The case was called Magyar Helsinki Bizottság v. Hungary. A human rights NGO was seeking important state information in the public interest.

The Court decided that not only were they fully entitled to it, but for the first time in Strasbourg legal history the most senior human rights court asserted that it is a standing right under Article 10 freedom of expression.

This is a game-changer in Freedom of Information law.

It should change the situation for investigative journalists and historical researchers in Britain.

European Court of Human Rights. Image: Council of Europe Credits

The United Kingdom government had been an intervener and actually opposed the application to establish this standing right even though it had nothing to do with the case in Hungary.

All of its arguments were defeated and rejected.

It should have opened the door for journalists and academic researchers fighting so hard to find out the hidden secrets in the story of the United Kingdom.

Sadly, although it is now sixteen months later, the Chartered Institute of Journalists campaign for justice in FOI continues to be frustrated.

Why? FOI campaigners and mainstream news organisations had been putting all their bets on a European Court of Human Rights case in freedom of information fought for by Times Newspaper Investigative editor Dominic Kennedy.

He had been seeking to challenge a block by absolute exemption in the FOI Act of 2000 on documents held by the Charity Commission in relation to their enquiry into a fund to provide medical help to Iraqi children.

The UK Supreme Court in 2014 sustained the absolute exemption, but suggested he and the newspaper could make a common law request to the Charity Commissioners and if turned down again pursue a judicial review remedy.

UK Supreme Court. Image: Tim Crook

They did that and got most of the documents they wanted but did not go to judicial review for the documents still withheld.

They hoped they were going to win at the European Court of Human rights on the Article 10 issue, but in December last year their case was ruled inadmissible. They had not exhausted all the domestic legal remedies open to them.

This unfortunate strategy has left so many journalists and researchers well and truly beached when trying to overcome absolute ‘neither confirm nor deny’ exemptions in the FOI Act; particularly in relation to information held by security bodies.

All public bodies categorised as security bodies, or other government departments dealing with security body information have to do now is tell FOI applicants, judicially review us if you are not happy with our decision.

Of course, freelance journalists, small publishers and academic researchers are not in a position to risk having to pay all the legal costs of government lawyers by going to the High Court for judicial review and losing.

I have been finding obfuscation, blocking and delay with every twist and turn of the several journalistic and research FOI cases I am currently running as part of the CIoJ campaign.

The 2016 Grand Chamber ECtHR ruling would have been the trump card to support my FOI battle with the Foreign Office and MI6 to release files on ‘Alec’ Alexander Wilson- the espionage novelist and bigamist at the centre of the BBC television drama series Mrs Wilson.

Ruth Wilson and Iain Glen starring in Mrs Wilson based on Tim Crook’s research. Image: BBC Media Centre.

My 2018 book The Secret Lives of a Secret Agent: Second Edition explores the battle to access information on Wilson.

After getting blocked at Information Tribunal First tier level, I have been asking my local MP James Cartlidge to put in formal requests to the Foreign Office and Home Office. There have been two unsuccessful FCO reviews.

The Home Office encouraged me to ask the Security Service to release Alexander Wilson information for historical purposes. This I have done and who knows what will happen in the future.

The Secret Lives of a Secret Agent: Second Edition by Tim Crook. Image: Kultura Press.

I have three other security body absolute exemption cases currently going through the FOI system.

The Information tribunal system has ‘stayed’ my appeal for access to Special Branch files on Goldsmiths College staff and students prior to 1989 pending a decision in a wholly unrelated FOI exemption case concerning Kingston council.

The Information Commissioner’s Office turned down my appeal for Security Service files on Goldsmiths staff and students prior to 1989 on the basis the Home Office does not have them and did not have responsibility for the Security Service before it was established as a statutory body answerable to Parliament in 1989.

Justice delayed, of course, is justice denied.

An absolute exemption on accessing state information is a direct contradiction of any legislation that calls itself ‘Freedom of Information.’

The Institute campaign on this issue has always been clear and correct. Article 10 freedom of expression gives professional journalists and researchers a standing right to state information.

Banner for the European Court of Human Rights. Image: Council of Europe Credits.

The question of whether it should be released must be properly adjudicated in a public interest balancing exercise in the courts.

That remedy as a right of access should, according to the UN Human Rights Committee, be ‘easy, prompt, effective and practical.’

We wait patiently for the day the UK judiciary are prepared to do their duty according to law and recognise this.