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Judgments - Sugar (Appellant) v British Broadcasting Corporation and another (Respondents)

HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 9

on appeal from:[2008]EWCA Civ 191

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Sugar (Appellant) v British Broadcasting Corporation and another (Respondents)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Neuberger of Abbotsbury

Counsel

Appellant:

Tim Eicke

David Craig

Siddharth Dhar

(Instructed by Forsters LLP )

Respondents:

Monica Carss-Frisk QC

Kate Gallafent

(Instructed by BBC Litigation Department )

Hearing dates :

3 and 4 DECEMBER 2008

ON

WEDNESDAY 11 FEBRUARY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Sugar (Appellant) v British Broadcasting Corporation and another (Respondents)

[2009] UKHL 9

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

Introduction

1.  The Freedom of Information Act 2000 (“the Act”) provides for a general right of access to information held by public authorities. That right is subject to exceptions. The Act makes provision for its enforcement by the Information Commissioner (“the Commissioner”) and for a right of appeal from a decision of the Commissioner to the Information Tribunal (“the Tribunal”). Schedule 1 to the Act lists the public authorities to which the Act applies. A small number of these are listed in respect only of certain specified information. One of these is the first respondent (“the BBC”), which is listed as “The British Broadcasting Corporation in respect of information held for purposes other than those of journalism, art or literature".

2.  The BBC holds a report that it commissioned in respect of its coverage of the Middle East (“the Balen Report”). The appellant, Mr Sugar asked the BBC to provide him with a copy of this report. He contended that the report was held by the BBC for purposes other than journalism, art or literature and that, in consequence, the BBC held it as a public authority and was bound by the Act to communicate its contents to him. The BBC disagreed. It 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. I shall 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 and the Commissioner argued that the Tribunal had no jurisdiction. The Tribunal held that it had jurisdiction and purported to exercise this 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 [2007] EWHC 905 (Admin); [2007] 1 WLR 2583. Davis J 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. I shall describe the issue of whether the Tribunal had jurisdiction as “the jurisdiction issue".

3.  Mr Sugar had anticipated the possibility of this result by making a cross-application for judicial review, challenging the Commissioner’s decision on the journalism issue. This challenge failed. Davis J upheld the Commissioner’s finding that, for the purposes of Mr Sugar’s application to it, the BBC was not a public authority. He held that the Commissioner had rightly held that he had no jurisdiction. He added that he would not have granted relief in any event, for further material events had occurred since the date of the Commissioner’s decision.

4.  Mr Sugar appealed to the Court of Appeal on the jurisdiction issue alone. His appeal failed. In the leading judgment Buxton LJ upheld Davis J’s decision that neither the Commissioner nor the Tribunal had had any jurisdiction to entertain Mr Sugar’s challenges. [2008] EWCA Civ 191; [2008] 1 WLR 2289.

5.  This appeal raises two issues, one narrow and one broad. The broad issue is whether the Commissioner was correct, on his view of the merits of the journalism issue, to conclude that he had no jurisdiction under the Act. That is an issue of general importance. The narrow issue is whether the Commissioner made a decision that was susceptible to an appeal to the Tribunal. That issue turns on the particular facts of this case. It is necessary at the outset to refer to the Act in a little detail.

The Act

6.  The Act is divided into eight parts. Those that are significant in the context of this appeal are the following.

i)   Part I: This provides for the right to access to information held by public authorities;

ii)  Part II: This sets out a large number of categories of ‘exempt information';

iii)  Part IV: This deals with enforcement;

iv)  Part V: This deals with appeals;

7.  The Act applies to public authorities. Section 3(1) in Part I provides that in the Act “public authority” means, among others, “any body which, any other person who, or the holder of any office which… is listed in Schedule 1". Schedule 1 is lengthy. Some public authorities are 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. In all but one, the qualification was introduced by the words “in respect of". The exception was: “The Competition Commission in relation to information held by it otherwise than as a tribunal". I shall refer to this class of public authorities as “hybrid authorities". The information held by them in their capacity as public authorities I shall describe as “public information". The other information held by them I shall describe as “excluded information".

8.  Section 7(1) in Part I provides:

“Where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts I to V of this Act applies to any other information held by the authority".


The marginal note to this provision reads:

“Public authorities to which Act has limited application.”

It has to date been accepted, and I think rightly accepted, that section 7(1) refers to the hybrid authorities.

9.  Section 1 deals with the initial obligations of a public authority when a person makes a request to it for information.

“1.—(1) Any person making a request for information to a public authority is entitled—

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him.

(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.

(3) Where a public authority—

       (a) reasonably requires further information in order

to identify and locate the information requested,

and

       (b) has informed the applicant of that requirement,

the authority is not obliged to comply with subsection (1) unless it is supplied with that further information.

(4) The information—

       (a) in respect of which the applicant is to be

informed under subsection (1)(a), or

       (b) which is to be communicated under subsection

(1)(b),

is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request.

(5) A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b).

(6) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as ‘the duty to confirm or deny'.”

Part I goes on to make very detailed provision for the response that a public authority has to give in relation to exempt information that it holds. Broadly speaking, depending upon the precise terms of Part II, there will in some cases, and may in other cases, be no obligation to communicate the information under section 1(1)(b). There may or may not, again depending upon the precise terms of Part II, be a duty to ‘confirm or deny’ under section 1(1)(a). Section 17 imposes requirements as to the explanation that must be given by a public authority to the maker of a request for information when the public authority claims that information is exempt information or exercises a right to decline to ‘confirm or deny'.

10.  The following provisions in Part IV and V in relation to enforcement are particularly material:

“50.—(1) Any person (in this section referred to as ‘the complainant’) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2) On receiving an application under this section, the Commissioner shall make a decision unless it appears to him—

(a) that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,

(b) that there has been undue delay in making the

application,

(c) that the application is frivolous or vexatious, or

(d) that the application has been withdrawn or

abandoned.

(3) Where the Commissioner has received an application under this section, he shall either—

       (a) notify the complainant that he has not made any

decision under this section as a result of the application and of his grounds for not doing so, or

(b) serve notice of his decision (in this Act referred to as a ‘decision notice’) on the complainant and the public authority.

(4) Where the Commissioner decides that a public authority—

(a) has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or. . .

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.

. . .

51.—(1) If the Commissioner—

(a) has received an application under section 50, or

(b) reasonably requires any information—

       (i) for the purpose of determining whether a public authority has complied or is complying with any of the requirements of Part I, or

       (ii) for the purpose of determining whether the practice of a public authority in relation to the exercise of its functions under this Act conforms with that proposed in the codes of practice under sections 45 and 46,

he may serve the authority with a notice (in this Act referred to as ‘an information notice’) requiring it, within such time as is specified in the notice, to furnish the Commissioner, in such form as may be so specified, with such information relating to the application, to compliance with Part I or to conformity with the code of practice as is so specified.

. . .

57.—(1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.

(2) A public authority on which an information notice or an enforcement notice has been served by the Commissioner may appeal to the Tribunal against the notice.

(3) In relation to a decision notice or enforcement notice which relates—

       (a) to information to which section 66 applies, and

       (b) to a matter which by virtue of subsection (3) or (4) of that section falls to be determined by the responsible authority instead of the appropriate records authority,

subsections (1) and (2) shall have effect as if the reference to the public authority were a reference to the public authority or the responsible authority.

58.—(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

59. Any party to an appeal to the Tribunal under section 57 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be—

(a) the High Court of Justice in England if the address of the public authority is in England or Wales…”

Mr Sugar’s request and what followed

11.  Mr Sugar’s request for information, addressed to the British Broadcasting Corporation was sent on 8 January 2005. It began as follows:

“Dear Sirs,

Request under Section 1 of the Freedom of Information Act 2000 (the ‘Act’)

The Balen Report

Please provide me with a copy of the report by Mr Michael Balen regarding the BBC’s news coverage of the Middle East, in particular the conflict between Israel and the Palestinians. I understand from press comment about this report that it was provided to BBC management in the last few months of 2004.

I appreciate that the BBC’s obligations under the Act do not apply to information ‘held for the purpose of journalism'. This restriction must be carefully applied. It does mean that the public does not have a right of access to information obtained by the BBC’s journalists for the purposes of their news reports. But it does not mean that anything to do with BBC journalism is not to be publicly available. In particular, information held for the purposes of developing policy in relation to the BBC’s news function or the management of that function is not information held for the purposes of journalism. It is information held for the purposes of the management of the BBC’s journalism.”

12.  The BBC replied as follows on 11 February:

“The information you requested is not covered by the Freedom of Information Act 2000 (‘the Act’).

Information about BBC programmes, content and their production is not covered by the Act. The impartiality of our journalism is an important part of that production. (Schedule 1 of the Act says that the BBC is covered in respect of information held for purposes other than those of journalism, art or literature).

. . .

If you are not satisfied with this decision that the information you requested is not covered by the Act you can apply for an internal review of our decision. To apply for internal review please email [email protected] or write to BBC Freedom of Information, PO BOX 48339, London, W12 7XH, UK, quoting the reference number at the top of this correspondence. If having completed the BBC’s internal review process, you remain dissatisfied with the Corporation’s decision on your information request, you can raise the issue with the Information Commissioner. Further details about the work of the Commissioner are available at www.informationcommissioner.gov.uk”

It is now the BBC’s case that they made a mistake in referring Mr Sugar to the Commissioner because the Commissioner had no jurisdiction in this matter.

13.  Mr Sugar replied immediately to the BBC asking them to review their decision. They did so and upheld their decision not to provide the information. On 18 March 2005 Mr Sugar wrote to the Commissioner, purporting to make a complaint under section 50 of the Act. He summarised his complaint as follows:

“As I anticipated, the BBC is relying on the words in the Act which limit the BBC’s disclosure obligations so that they do not apply to information ‘held for the purposes of journalism'. I say that information held for the purposes of the review of the BBC’s journalism is not per se information held for the purposes of journalism within the meaning of the Act. The BBC appears to deny this but has not provided any argument to the contrary. Instead the BBC seems to say that Mr Balen’s view of the BBC’s impartiality should be kept to itself. I consider this is contrary to the intention of the Act.

My main complain is therefore that I have not been given a copy of the Balen Report to which I say I am entitled.”

14.  The Commissioner wrote to Mr Sugar on 24 October informing him of his current view of his complaint, after considering the Balen Report, submissions from the BBC, Mr Sugar’s correspondence and extensive consultation with senior colleagues. That view he confirmed in a short letter of 2 December, as follows:

“Your request for information from the BBC under the Freedom of Information Act 2000 (the ‘Act’)

. . .

The Commissioner’s decision

After a careful re-evaluation of: the Balen Report, the submissions received in respect of the report, and the information on the file, it is the Commissioner’s final decision that for the purposes of your request:

(i) the Balen Report is held for the purpose of journalism, art or literature; and

(ii) the BBC has correctly applied Part VI of Schedule 1 to the Act.

Consequently, and in the particular circumstances of this case, the BBC is not a public authority under the Act, and is therefore not under an obligation to release the contents of the Balen Report.

In the circumstances of the above, I confirm that this file will be closed because this Office is unable to take your complaint further. I appreciate that this letter may be a disappointment to you but I hope that the contents of my previous letter has helped to explain why this Office is unable to progress with your complaint.

I would also like to take this opportunity to inform you of your right to request a judicial review of our decision.”

15.  Mr Sugar did not at this stage apply for judicial review. Instead he wrote to the Tribunal on 30 December 2005, purporting to give a Notice of Appeal under section 57 of the Act. This asserted that the Commissioner had reached an erroneous view on the journalism issue. In accordance with the relevant Rule the Commissioner served a reply, which made the following submission

“21. The Information Tribunal does not have jurisdiction to hear this appeal.

22. Section 57(1) of the Act provides that a complainant or public authority may appeal to the Information Tribunal against a Decision Notice served under section 50.

23. The Commissioner has taken the view that the BBC is

not a public authority in respect of the Balen Report.

The Commissioner does not consider that he may issue

a Decision Notice under section 50 in this case and has

not therefore done so.

24. If the Appellant wishes to challenge a decision of the Commissioner, other than one made by way of a Decision Notice under section 50, his route to do so is by way of judicial review.”

16.  The Tribunal held a preliminary hearing on the issue of jurisdiction. The BBC’s argument can be summarised as follows. Mr Sugar’s request for information had been made to the BBC as holder of the Balen Report. The Balen Report was held for the purposes of journalism. It followed that, in its capacity as holder of the Balen Report, the BBC was not a public authority. Mr Sugar’s request had not been made to a public authority. The Act did not apply to it. The Commissioner had no jurisdiction under the Act to make a decision that could be appealed to the Tribunal. Nor had he done so. He had expressly found that the BBC was not a public authority.

17.  The Tribunal published its decision on 29 August 2006. It held that the BBC’s argument was fallacious. Whether or not the BBC held the Balen Report in its capacity as a public authority Mr Sugar’s request for information had been made to it as a public authority and was covered by section 1 of the Act. The Commissioner had had jurisdiction to decide whether the BBC had complied with its obligations under section1. He had so decided, and his finding was, in effect, a decision notice under section 50(3). The Tribunal had jurisdiction to entertain Mr Sugar’s appeal against the Commissioner’s decision.

18.  At the same time as it published its decision on jurisdiction the Tribunal published a decision on the journalism issue. This reversed the Commissioner’s decision, ruling that at the time of Mr Sugar’s request the BBC held the Balen Report for a purpose other than journalism.

The decisions of Davis J and the Court of Appeal

19.   By the time that this matter came before Davis J the Commissioner had had a change of heart - indeed this had occurred before the Tribunal published its decision on jurisdiction. He now espoused the view that he had had jurisdiction under section 50 to entertain Mr Sugar’s complaint, that he had done so and that he had in substance, if not in form, issued a decision notice, against which Mr Sugar had been entitled to appeal to the Tribunal. Accordingly he supported Mr Sugar’s submission that the Tribunal had correctly decided the jurisdiction issue. Davis J did not agree. He upheld the BBC’s contention that, in its capacity as holder of journalistic material, it was not a public authority and not subject to the provisions of the Act, including section 1. The Commissioner’s finding that the Balen Report was journalistic material meant that, in his eyes the BBC was not to be considered as a public authority, with the result that section 1 of the Act had no application. He so stated in a decision letter which did not constitute a “decision notice” and so no appeal lay to the Tribunal.

20.  Davis J expressed the view that the result that he had reached had practical consequences that were unattractive. I share that view. Under the scheme of the Act an issue as to whether a public authority has complied with the requirements of Schedule 1 falls to be determined initially by the Commissioner, with an appeal to the Tribunal. In a case such as this, that issue turns on whether the information held is public or excluded information. If the Commissioner’s jurisdiction turns on precisely the same question, how is he to set about resolving it if, as is likely to be the case, he lacks the necessary information? Section 51 is designed to enable him to require production of the information that he needs to perform his duties, but that section will not apply if the Commissioner has no jurisdiction. Quite apart from this practical problem, if the Commissioner’s decision goes to his jurisdiction, whether the decision is positive or negative, the appropriate forum for a challenge will be the administrative court in judicial review proceedings. It is hard to believe that Parliament intended that the issue of the capacity in which a hybrid public authority holds information should have to come before a court rather than the Commissioner and the Tribunal, who would seem tailor made to resolve it.

 
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