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Magazine of the Chartered Institute of Journalists

Chartered Institute of Journalists breaking new ground in test cases on Freedom of Information for journalists, academics and NGOs

• Chartered Institute of Journalists is the only UK journalist body fighting to put freedom of expression law at the heart of freedom of information process
• European Court of Human Rights gave special recognition to journalists, academic researchers and NGOs by extending Article 10 to include the right to state information in 2016
• But UK government, FOI tribunal system and Information Commissioner’s Office are stubbornly blocking implementation
• CIOJ President Professor Tim Crook has 5 FOI appeals fighting the issue and challenging absolute blocks to historical archives managed by Met Police, MI5 and MI6
• He’s seeking access to information on government spying of staff and students at Goldsmiths, University of London, vetting and spying on left wing BBC writers and producers, and the case of WWII MI6 officer Alexander Wilson recently made into TV drama series Mrs Wilson

The Institute is currently battling five Freedom of Information cases at the First Tier Tribunal (Information Rights) and Upper Tribunal in a campaign to achieve proper recognition for the human rights of journalists, academic researchers and NGOs to government information.

The Information Commissioner’s Office (ICO) is refusing to hear the CIoJ President’s appeals against the block by MI5 and MI6 on access to historical files more than 70 years old.

The First Tier Tribunal, which hears appeals on FOI cases, is questioning whether it has jurisdiction and will even hear the appeal against the refusal to hear the appeal.

Professor Crook’s three longstanding investigative projects have huge public interest significance and are clearly part of the ‘social watchdog’ role recognised by highest European Court of Human Rights as deserving the right to state information.

They have resulted in published books and a BBC television drama series.

There are also two appeals before the Upper Tribunal where Professor Tim Crook and the Institute are challenging the refusal to recognise the European Court of Human Rights Grand Chamber ruling in 2016 saying there is a qualified right under Article 10 to state/government information.

Courtroom of the European Court of Human Rights By Adrian Grycuk – Own work, CC BY-SA 3.0 p

Strasbourg changed the law and extended the reach of Article 10 in freedom of information requests in a case from Hungary four years ago called ‘Magyar’.

The UK government was the only intervening country opposing the move to recognise a standing right for access to government information under Article 10 Freedom of Expression, which along with all the other Human Rights was enshrined into UK law by legislation in 1998 and enacted in the year 2000.

Every argument put forward by UK government lawyers was turned down in a high majority ruling of 15-2 by the Grand Chamber unequivocally declaring that there is a qualified right specifically for journalists, academic researchers and NGOs undertaking the public interest social watchdog role of seeking information in a democratic society.

But the UK government, ICO, which regulates FOI in England, and Information Tribunal system have blocked and opposed every move to apply the new ruling.

European Court of Human Rights building by CherryX CC BY-SA 3.0

In the Magyar judgement, the Strasbourg court explained that the right to state information for journalists should be recognised because:

…it has been the Court’s practice to recognise the essential role played by the press in a democratic society and the special position of journalists in this context. It has held that the safeguards to be afforded to the press are of particular importance. The vital role of the media in facilitating and fostering the public’s right to receive and impart information and ideas has been repeatedly recognised by the Court, as follows: “The duty of the press is to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog.’”

Professor Crook argues that the Human Rights Act imposes a statutory duty on public authorities to act in ways that are compatible with Convention rights and to interpret legislation in ways that are also compatible with Convention rights.

The act also states that all courts must take into account rulings of the European Court of Human rights.

He says this has not been happening. The Information Commissioner’s Office has been doing the opposite.

They have had four years to seek changes to the Freedom of Information Act and subordinate legislation in order to recognize the major change in the law brought about by the Magyar case.

Instead he says ‘All they have done is obfuscate and block attempts to recognize this fundamental change in the law.’

Professor Crook says the Upper Tribunal recently did the exact opposite of advisory opinion in a more recent Strasbourg ruling in 2018 which said the UK Courts should be following the ruling of the Grand Chamber in Magyar.

The court said the national courts should, in the absence of special circumstances, follow ‘any clear and constant jurisprudence of this Court and should not, without strong reason, dilute or weaken the effect of this Court’s case-law.’

Professor Crook and the Institute are appealing the issue before Upper Tribunal judge Stewart Wright who ruled earlier this year that Magyar did not apply in the FOI tribunal system in a case that had nothing to do with journalism, academic research, or NGOs in their campaigning role as social watchdogs.

The case involved a litigant in person called Derek Moss seeking information about a regeneration housing project from Kingston Council. He was outnumbered by a QC and two other leading counsel representing the government’s Cabinet Office and the ICO.

Professor Crook believes his cases can be distinguished from Moss.

He says it is time that the English FOI Tribunal system respected the rule of law and applied the Strasbourg’s court’s most powerful and clear declaration on the right to information for journalists and academic researchers.

He says it is astonishing that the Information Commissioner’s Office and First Tier Tribunal should be questioning whether it has jurisdiction on FOI requests to MI5 and MI6.

In February this year Tribunal Judge Hazel Oliver said he could complain to the Information Commissioner if a public authority relies on the absolute exemption in the Freedom of Information Act and ‘raise human rights arguments.’

The Judge also said he could ‘complain using human rights arguments about a refusal by the Security Service to engage with a FOIA request.’

Professor Crook says ‘It could be said we have the most powerful forces in the country ranged against us and all we have is our integrity, our well-founded arguments, and the Institute’s professional duty to further freedom of the media and the right to information.’

Member states of the Council of Europe By Rob984 – Derived from File:Europe orthographic Caucasus Urals boundary (with borders).svg, CC BY-SA 4.0,