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'Charity 267386 NARCONON - any action taken?'.
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Mr William Thackeray
by email only
[FOI #7594 email]
Charity Commission Direct
PO Box 1227, Liverpool L69 3UG
t: 01823 345094
f: 01823 345002
Your Ref:
Our Ref: AW/LT/708951
Date: 21 April 2009
Dear Mr Thackeray
Request for information under Freedom of Information Act ("FOI")
In your emails of 3 February 2009, 24 February 2009 and 20 March 2009, you ask a number of questions. I would like to confirm my understanding that your questions are:
In respect of the annual return and accounts of Narconon, you said they were “significantly (over a year) late.” In respect of the annual return and accounts, you asked “has the Charities Commission taken any action against this charity?”
If no action had been taken, you asked “if not, why not?”
We provided a response and you asked us questions about the response. You asked for “a reference to the legislation in which the Commission believes that this condition [relating to confidence] implicitly exists”.
You also asked for “the legal advice which leads the Commission to believe that it has the power to infer the existence of a condition such as this which is not explicitly present in legislation.”
Please let me know if I have not correctly understood your questions. As I understand your questions, I am pleased to be able to answer them in full.
In respect of your first question, there are two parts to the answer.
The first is to explain the process which is used when a charity's annual return and accounts are late. The Commission will write to the charity's correspondent, a person the charity has told us we should direct correspondence to. We write several letters at different stages in the accounts and annual returns process. Regarding the most recent annual return and accounts for the year ending in 2007 we have done the following:
On 4 January 2008, just after the financial year end, we wrote to the charity inviting them to submit an annual return, report and accounts;
On 5 August 2008, before the documents were due, we wrote to the charity reminding of the need to submit the annual return, reports and accounts by the due date.
On 31 October 2008 the documents became due;
On 15 November 2008, we wrote to the charity to tell them that the annual return, reports and accounts had not been received, that they were overdue, that failure to submit the documents is a serious matter and that defaulting charities are listed in the register of charities. We added that we would need to consider enforcement action if the documents are not provided.
On 9 February 2009, we wrote a reminder to the charity. In this letter we again explained that this was a serious matter. We added that we may take the continued failure to submit these documents as evidence that the charity has ceased to exist or does not operate. We warned that the charity may be removed from the Register of Charities in accordance with section 3(4) of the Charities Act 1993.
Since I understand that the Annual Return and Accounts for 2006 were overdue at the date of your original FOI request, I understand your question would include action taken in respect of those documents too. I can see from our records that in respect of the annual return, accounts and reports for the year ended in 2006, we took the following action:
On 27 February 2007, we wrote to invite the charity to complete the annual return, accounts and reports.
On 3 August 2007, we wrote a reminder to the charity.
On 21 November 2007, we wrote to the charity to inform them that the documents were overdue.
I do not believe your question is intended to relate to action taken in respect of any earlier Annual Returns or Accounts since they were not outstanding at the date of your request. If you do want information relating to action taken in respect of earlier Annual Returns or Accounts, you can of course make a further FOI request specifying the information you want.
Second, we have taken the following additional steps in order to have the 31 December 2006 and 2007 annual return, reports and accounts provided:
We contacted the charity following your FOI request, leaving a message on the charity contact's voicemail.
On 12 February 2009 we left a further message on the charity contact's voicemail.
On 20 February 2009 we telephoned the charity's contact who thought the Annual Return for the year ended 2006 had already been completed online. The charity's contact explained that the Annual Return for the year ended 2006 would be submitted in the following week.
On 4 March 2009, we received a call from the charity's correspondent. The charity could not access the Annual Return 2006 online.
On 9 March 2009, we emailed the charity's correspondent with an Annual Return 2006 to complete.
On 24 March 2009, we received a copy of the Annual Return 2006 which was not in a form we could accept since it was a print out of an online form rather than the form we had sent by email. We left a voicemail message for the charity's correspondent.
In a telephone conversation on 26 March 2006 we explained to the charity's correspondent that the emailed Annual Return for 2006 would need to be completed.
On 1 April 2009 we received the Annual Return for 2006.
2 You only asked this question if the Commission had taken no action. As you can see from my answer to your first question, action has been taken. This question does not arise.
3 The Freedom of Information Act 2000 provides the public with a right to recorded information held by a public authority. It does not require public authorities to create new information nor does it require public authorities to undertake and provide a legal analysis to questions posed about the interpretation of the law.
That said, you have asked us to clarify a view we offered in earlier correspondence and it is appropriate to explain. It seems to me most likely that we were referring to a principle which might loosely be summed up as follows: that information obtained under the threat of powers of coercion is likely to be held under an implied duty of confidence. Where that duty arises, it means the information can only be used for the purpose intended by the powers in question. The source for this principle is found in case law, not statute. Strictly, I believe the answer to your question is that there is no reference to legislation in which the condition exists.
Rather more constructively, in keeping with our duty under FOI to provide reasonable assistance and the overall spirit of this letter, I can give you a reference to case law which appears to be relevant to your question. An example the principle being applied can be seen in the Court of Appeal case, Marcel v Commissioner of Metropolitan Police [1992] Ch 225. The reference is the name of a case which can be found in the 1992 Chancery Division reports at page 225.
As you have seen, when I answered your first question I did not need to disclose confidential information. On reconsidering your first question, I have not needed to rely on the implied duty of confidence which you asked about in your third question. I have not needed to rely on the exemption under section 41 of the Freedom of Information Act 2000 which relates to confidential information.
4 On the files to which your question relates, there is no record of the content of legal advice beyond the following record “the content of any contact both Commissions and the charities comes under Section 41”. The record attributes this to legal advice.
I believe I have answered your questions fully. I have not applied any exemptions when providing you with the information you asked for.
If you have any further questions for us under FOI, please contact Charity Commission Direct.
Yours sincerely
Andrew Wherrett
[email address]
page 2 of 4
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