British Broadcasting Corporation v The Information Commissioner
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 02 October 2009 |
| Neutral Citation | [2009] EWHC 2348 (Admin) |
| Docket Number | Case No: CO/11726/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 October 2009 |
[2009] EWHC 2348 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE INFORMATION TRIBUNAL
Before :THE HON MR JUSTICE IRWIN
Case No: CO/11726/2008
Miss Monica Carss-Frisk QC & Miss Kate Gallafent (instructed by British Broadcasting Corporation) for the Appellant
Mr Ben Hooper (instructed by The Information Commissioner) for the Respondent
Hearing dates: 30 June – 1 July, & 14 July 2009
Mr Justice Irwin :
This case is an appeal on behalf of the British Broadcasting Corporation [“the BBC”] against the decision of the Information Tribunal [“the Tribunal”] promulgated on 7 November 2008, on a preliminary issue, namely whether the information requested in four consolidated appeals, was information to which the Freedom of Information Act 200 [“the Act”] applied. The hearing before me immediately followed that in BBC v Steven Sugar and Another CO/7618/2006, [“the Sugar case”] in which similar, although not identical, issues arose, and in which the BBC and the Information Commissioner [“the Commissioner”] were represented by the same counsel. Where the same issues arise in these two cases, my judgments will be expressed in identical or very similar terms.
Central to the decision in each of these cases is the question whether the information requested was held, at the time it was requested, '…for purposes other than those of journalism, art or literature' within the meaning of that phrase in Part VI of Schedule 1 to the Act. By section 7(1) of the Act, the BBC, is 'a public authority listed in Schedule 1 only in relation to information of a specified description', and therefore '..nothing in Parts I to V of this Act applies to any other information held by the authority.'
In one respect, this case took a slightly unusual turn, which it is probably helpful to record now. Historically, the BBC made the concession in submissions to the Commissioner, before the Tribunal, in the Sugar case and in these proceedings, that the test under the Schedule required qualification by necessary implication, by inserting the adverb 'predominantly' before the phrase 'for purposes other than those of journalism, art or literature'.
The hearing before the Tribunal was essentially conducted on that basis, although as I touch on below, a number of other phrases and concepts were allowed to come into play in the course of the decision by the Commissioner and the Tribunal proceedings. The same observations apply to the Sugar case. For the great part of these proceedings before me, despite some gentle questioning from the Bench, submissions continued on the basis of that concession. However, at what would otherwise have been the close of submissions in this case, I adjourned the case and asked both parties to address the question of the supposed 'predominance' test in further submissions, both in writing and orally.
I did so for a number of reasons. Principally, I felt unable to be confident that the effect of the historic concession by the BBC truly represented the law. This test applies to other bodies than the BBC. It is also the basis of the jurisdiction under the Act. The meaning of the test has been the subject of no previous authority, the only reference being the observations of Mr Justice Davis set out below. I am grateful to all counsel that they responded by making further submissions, and in such a helpful fashion.
The Statutory Scheme
“1. General right of access to information held by public authorities
(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.
3. Public authorities
(1) In this Act “public authority” means:
(a) subject to section 4(4), any body which, any other person who, or the holder of any office which—
(i) is listed in Schedule 1
7. Public authorities to which Act has limited application
(1) 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.
(2) An order under section 4(1) may, in adding an entry to Schedule 1, list the public authority only in relation to information of a specified description.
(3) The [Secretary of State] may by order amend Schedule 1—
(a) by limiting to information of a specified description the entry relating to any public authority, or
(b) by removing or amending any limitation to information of a specified description which is for the time being contained in any entry………………
36. Prejudice to effective conduct of public affairs
(1) This section applies to —-
(b) information which is held by any other public authority.
(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act——-
(b) would, or would be likely to, inhibit—
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
(5) In subsections (2) and (3) “qualified person”——
(o) in relation to information held by any public authority not falling within any of paragraphs (a) to (n), means—-
(ii) the public authority, if authorised for the purposes of this section by a Minister of the Crown, or
(iii) any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown.
43. Commercial interests
(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1) (a) would, or would be likely to, prejudice the interests mentioned in subsection (2).
50. Application for decision by Commissioner
(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 1.
(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
(b) has failed to comply with any of the requirements of sections 11 and 17, 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.
(5) A decision notice must contain particulars of the right of appeal conferred by section 57.
58. Determination of appeals
(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. Appeals from decision of Tribunal
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
Schedule 1 Part VI
Other Public Bodies and Offices: General
The Bank of England, in respect of information held for purposes other than those of its functions with respect to—
(a) monetary policy,
(b) financial operations intended to support financial institutions for the purposes of maintaining stability, and
(c) the provision of private banking services and related services.
The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature.
The Channel Four Television Corporation, in respect of information held for purposes other than those of journalism, art or literature.
The Competition Commission, in relation to information held by it otherwise than as a tribunal
The Gaelic Media Service, in respect of information held for purposes other than those of journalism, art or literature
Sianel Pedwar Cymru, in respect of information held for purposes other than those of journalism, art or literature
The Traffic Commissioners, in respect of information held by them otherwise than as a tribunal…………….
The verderers of the New Forest, in respect of information held by them otherwise than as a tribunal..”
The History of These Cases
On 21 January 2005 Mr David Gordon (Belfast Telegraph Newsroom) submitted a request to the BBC for the following information:
“1. What is the annual gross salary paid by the BBC to each of the following George Jones, Stephen Nolan, Hugo Duncan, Gerry Anderson, John Daly, David Dunseith, Donna Traynor, Noel Thompson, Conor Bradford and Seamus McKee?
2. How much did...
To continue reading
Request your trial
-
British Broadcasting Corporation and another v Sugar (No 2)
...he handed down his judgment in the present proceedings, Irwin J handed down his judgment in BBC v The Information Commissioner [2009] EWHC 2348 (Admin), [2010] EMLR 121. He held that information about (among other things) costs referable to its broadcast of "EastEnders", about its annual b......
-
Sugar and another v British Broadcasting Corporation (No 1)
... ... The British Broadcasting Corporation Appellant and (1) Steven Sugar Respondents (2) The Information Commissioner and The Queen (on the Application Of) Claimant The British Broadcasting Corporation and ... ...
-
Department for Work and Pensions v IC and FZ GIA 2568 2013
...demanding threshold was applied in the FOIA context by Irwin J in British Broadcasting Corporation v The Information Commissioner [2009] EWHC 2348 (Admin) (at paragraphs [83]-[85]). Of course, the same threshold for perversity applies in other jurisdictions (e.g. in employment tribunals, se......
-
Department for Work and Pensions GIA 2569 2013
...demanding threshold was applied in the FOIA context by Irwin J in British Broadcasting Corporation v The Information Commissioner [2009] EWHC 2348 (Admin) (at paragraphs [83]-[85]). Of course, the same threshold for perversity applies in other jurisdictions (e.g. in employment tribunals, se......