West Law Report

Information Tribunal has jurisdiction over BBC as public authority

Posted in House of Lords (case), Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 12, 2009

Information Tribunal has jurisdiction over BBC as public authority
House of Lords
Published February 12, 2009
British Broadcasting Corporation v Sugar and Another
Before Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches February 11, 2009

The British Broadcasting Corporation was a public authority for the purposes of the Freedom of Information Act 2000 which meant that all requests for information were subject to the jurisdiction of the Information Commissioner and, on appeal, the Information Tribunal, even if the information requested was held for the purposes of art, journalism or literature.

The House of Lords so held by a majority (Lord Hoffmann and Lady Hale dissenting) in allowing an appeal by the appellant, Steven Sugar, against the dismissal by the Court of Appeal (Lord Justice Buxton and Lord Justice Lloyd and Sir Paul Kennedy) ([2008] 1 WLR 2289) of Mr Sugar’s appeal from Mr Justice Davis, in the Administrative Court of the Queen’s Bench Division (The Times May 22, 2007; [2007] 1 WLR 2583) who allowed an appeal by the first respondent, the BBC, from a decision of the Information Tribunal (Mr John Angel, chairman, Mr Henry Fitzhugh and Mr John Randall) promulgated on August 29, 2006, that it had jurisdiction to reach a decision on whether the second respondent, the Information Commissioner, had been correct to rule that the BBC was not a public authority in respect of Mr Sugar’s request for information.

Mr Tim Eicke, Mr David Craig and Mr Siddharth Dhar for Mr Sugar; Ms Monica Carss-Frisk, QC and Ms Kate Gallafent for the BBC; the Information Commissioner did not appear and was not represented.

LORD PHILLIPS said that the 2000 Act provided for a general right of access to information held by public authorities. That right was subject to exceptions. The Act made provision for its enforcement by the Information Commissioner and for a right of appeal from a decision of the commissioner to the Information Tribunal.

Schedule 1 to the Act listed the public authorities to which the Act applied. A small number of those were listed in respect only of certain specified information. One of those was the BBC, which was listed as “The British Broadcasting Corporation in respect of information held for purposes other than those of journalism, art or literature”.

The BBC held a report that it had commissioned in respect of its coverage of the Middle East, the Balen Report. Mr Sugar asked the BBC to provide him with a copy of that report.

The BBC contended that it held the report for the purposes of journalism and not as a public authority and that, in consequence, the Act had no application. His Lordship would call the issue of whether or not the BBC held the report for journalistic purposes “the journalism issue”.

Mr Sugar challenged the BBC’s response before the commissioner. The commissioner upheld the BBC’s contention. Mr Sugar appealed to the tribunal. The BBC argued that the tribunal had no jurisdiction. The tribunal held that it had jurisdiction and purported to exercise it by reversing the commissioner’s decision on the journalism issue.

The BBC then brought, simultaneously, an appeal under the provisions of the Act and a claim for judicial review. The claim succeeded; the judge held that the commissioner had determined that he had no jurisdiction. He had made no decision that was susceptible to an appeal to the tribunal under the Act. The tribunal had acted without jurisdiction and its decision could not stand. His Lordship would describe the issue of whether the tribunal had jurisdiction as “the jurisdiction issue”.

Schedule 1 was lengthy. Some public authorities were listed generically, others individually. Out of approximately 500 names in the list originally scheduled to the Act, nine were qualified by reference to the class of information held, of which one was the BBC. His Lordship would refer to that class of public authorities as “hybrid authorities”. The information held by them in their capacity as public authorities would be described as “public information”. The other information held by them would be described as “excluded information”.

Section 1 of Part I of the Act applied whenever a request for information was made to a public authority, whatever the nature of the information sought, whether the public authority held the information or not and, in the case of a hybrid authority, whether the information was public or excluded.

When a request for information was specifically made under the Act to a hybrid authority it was axiomatic that the maker of the request was making it to the hybrid authority in its capacity as a public authority. That was because the obligations under the Act only applied to public authorities.

So far as Mr Sugar was concerned, the terms of his letter of request made it quite clear that he was asserting that the BBC owed him a duty to provide the Balen Report in its capacity as a holder of public documents. He was well aware that the BBC would be under no duty to provide him with the information if it did not hold it as a public document and thus in its capacity as a public authority.

It followed that, on the facts of the case, it was quite wrong to treat Mr Sugar as having made a request to the BBC other than in its capacity as a public authority simply because of the nature of the information that he was requesting.

The response given by the BBC was more detailed than necessary if, as it claimed, the Balen Report was excluded information. On that premise, the response more than satisfied the BBC’s obligation under section 1 to confirm or deny whether or not it held information of the description specified in the request.

The issue raised by Mr Sugar was, however, whether that premise was correct. That was an issue that he was entitled to raise by his complaint to the commissioner under section 50 and the commissioner had jurisdiction to entertain that complaint.

The issue that the commissioner was asked to resolve by Mr Sugar by his letter of complaint was whether the BBC was correct to contend that the Balen Report was held for the purpose of journalism.

The commissioner decided that question. He found that the BBC was not under an obligation to release the contents of the report. That was a decision that Mr Sugar was entitled to challenge before the tribunal, provided that the commissioner had conveyed it to him in a decision notice.

Section 50 of the Act did not prescribe the form of a decision notice. His Lordship considered that that phrase simply described a letter setting out the commissioner’s decision. That was precisely the letter that the commissioner wrote to Mr Sugar.

For those reasons the tribunal had jurisdiction to make the decision that it did and the appeal would be allowed. It followed that the governing decision on the journalism issue was that of the tribunal, and that the only possible appeal from that decision lay to the High Court on a point of law.

The judge had, of course, already ruled on the journalism issue, but he approached that issue as one raised in a judicial review challenge by Mr Sugar of the commissioner’s decision on the point. He asked himself whether the decision of the commissioner was a lawful and rational one, properly open to him on the material before him.

That was not the test that he should have applied had he concluded, as he should have done, that the tribunal’s decision was made with jurisdiction and that the BBC’s only right to challenge it was on the ground that it was wrong in law. It followed that the result of allowing this appeal would be to restore the tribunal’s decision.

Lord Hope and Lord Neuberger delivered concurring opinions. Lord Hoffmann and Lady Hale delivered dissenting opinions.

Solicitors: Ms Sarah Jones, White City; Forsters LLP.

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