Article 10: A new key to unlock access information held by public authorities

The Upper Tribunal’s recent decision in Cruelty Free International v Information Commissioner and Home Office [2026] UKUT 328 is one of the most important freedom of information judgments in recent years. The specially convened three-judge panel finally recognised that UK law includes a right (under Article 10 of the European Convention on Human Rights) to receive information, so increasing the likelihood of securing disclosure of information by public authorities in significant public interest cases.

The Upper Tribunal (UT) declined to follow its earlier decision in Moss [2020], and held that domestic courts are not prevented by the Supreme Court’s decisions in Sugar v BBC and Kennedy v Charity Commission from recognising a right of access to information, subject to conditions, identified by the Grand Chamber of the European Court of Human Rights in Magyar Helsinki Bizottság v Hungary [2016].

The decision matters for journalists, authors, researchers and bloggers contesting public authorities citing exemptions from disclosure under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) and those seeking information from public bodies under the common law right of access to information identified in Kennedy.  The decision also matters to public authorities even if not expressly subject to FOIA or EIR. 

Background

Cruelty Free International sought information from the Home Office concerning the evaluation of applications for licences to conduct animal experiments for cosmetics.  The Home Office disclosed some information but withheld much under section 44 FOIA (information exempt if disclosure is prohibited under any enactment), relying on section 24 of the Animals (Scientific Procedures) Act 1986 (ASPA), which prohibits disclosure of certain confidential information obtained in the exercise of functions under ASPA.  The Information Commissioner upheld that position, as did the FTT.

The issue before the UT was whether the combined effect of section 44 FOIA and section 24 ASPA unlawfully interfered with Cruelty Free International’s right to freedom of expression under Article 10.  Article 10(1) includes the right to receive information without interference by public authority.

The UT’s decision on Article 10(1)

The UT considered that Magyar set out a structured framework for access to information sufficient to address the concerns earlier expressed by the UKSC in Sugar and Kennedy, in particular by setting out criteria to be satisfied by the requester:

• The request must be to enable freedom of expression (preparatory to journalism or other activities creating a forum for, or constituting an essential element of, public debate).
• The information sought must provide transparency on the manner of conduct of public affairs and on matters of interest for society as a whole (so allowing participation in public governance by the public at large).
• The requester must be acting as a public watchdog (which may include journalists, NGOs, academic researchers, bloggers, certain social media publishers others performing a public scrutiny function).
• The information must be ready and available as opposed to requiring data collection by the authority (unless the difficulty in collecting the information is caused by the authority’s own record keeping practices)

Not an absolute right

The UT accepted that CFI here satisfied the Magyar criteria – how the harm/benefit test is applied by the Home Office when awarding licences for the testing of cosmetics on animals is a matter of clear public concern, and CFI performed a public watchdog function.  But the Article 10(1) right is qualified:

• Article 10(2) permits interference with freedom of expression on certain grounds, providing these are prescribed by law (here under the exemptions set out in FOIA) and necessary in a democratic society – eg for protection of national security, confidential information and privacy rights.  That did not help the Home Office here, as the UT found that the blanket prohibition in ASPA went further than is necessary (and the Home Office had told Parliament it was under review).
• Information blocked by a FOIA exemption may nevertheless be available by other means, because the authority voluntarily discloses it (as permitted under FOIA s78) or is required to do so following a judicial review challenge (as envisaged in Kennedy).  But again, that did not help the Home Office as ASAPA s24 provides that the disclosure of information is a criminal offence.  Convention rights must be “practical and effective” rather than “theoretical or illusory” (and it is open to question whether costly and lengthy judicial review proceedings do provide an effective alternative, particularly where news (a “perishable commodity” as the Courts have repeatedly recognised) is involved.
• CFI were ultimately unsuccessful, as the UT concluded that it could not use section 3 of the Human Rights Act 1998 to read down ASPA s24 by adding a qualification (in effect a defence) to a penal provision which on its face included no such qualification. That was for Parliament.

Impact of the UT decision

Unless and until it is successfully appealed, the decision is binding on the Information Commissioner and the First Tier Tribunal (FTT).  It provides a spur to greater transparency across government

Journalists, NGOs, researchers and other public-interest requesters may wish to have in mind the Magyar criteria when drafting requests, identifying the public interest purpose they serve, explaining how the information will contribute to debate on matters of public concern, and in emphasising the requester’s watchdog role, so being ready to make an Article 10 challenge if a request is refused.

Public authorities may wish to take a step back from FOIA exemptions and ask whether withholding the requested information is really necessary in a democratic society.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice or information about management training which we offer.