Ofcom GIA 605 2010
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 22 March 2011 |
| Neutral Citation | 2011 UKUT 116 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Morrissey & Information Commissioner |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 605 2010 |
| Appellant | Ofcom |
[2012] AACR 1
(OFCOM v Morrisey and another
Mr Justice Walker CP GIA/605/2010
Judge Marks QC
Judge Wikeley
22 March 2011
Jurisdiction of Information Commissioner and tribunal – whether extends to determination of public law questions of reasonableness
The complainant, Mr Morrissey, had made a request under the Freedom of Information Act 2000 to the Office of Communications (OFCOM), a regulator and public authority, to publish individual broadcasters’ detailed equal opportunities returns. OFCOM was required by section 337 of the Communications Act 2003 to publish arrangements made in pursuance of equal opportunities requirements, and had published aggregate summary data. OFCOM refused to disclose the desired information, relying on section 44 of the Freedom of Information Act 2000, which provides an exemption from disclosure where it is prohibited under any enactment, and section 393 of the 2003 Act, which bars disclosure without consent except for the purpose of facilitating the carrying out by OFCOM of any of its functions. Mr Morrissey complained to the Information Commissioner, who adopted the approach of the Information Tribunal in Hoyte v Civil Aviation Authority (EA/2007/0101), and decided that he should consider whether OFCOM had acted reasonably in declining to disclose the information in pursuance of its functions under the 2003 Act. The Commissioner concluded that OFCOM had acted reasonably, and Mr Morrissey’s complaint failed. On appeal by Mr Morrissey, the First-tier Tribunal, with minor corrections, agreed with the Information Commissioner’s approach. OFCOM appealed to the Upper Tribunal, which considered it appropriate to hear and determine the appeal as it appeared to raise two issues of general importance, relating to the jurisdiction of the Commissioner and, on appeal, the tribunal. It was argued for OFCOM, relying on O’Reilly v Mackman [1983] 2 AC 237, that a challenge to the reasonableness of OFCOM’s decision could be brought only by way of judicial review in a court exercising public law jurisdiction. For the Commissioner it was asserted, relying on Boddington v British Transport Police [1999] 2 AC 143 and other cases, that the modern approach required a presumption that it is for the Commissioner (subject to an appeal to the tribunal) to determine whether the only reasonable course that is open to the public authority in the circumstances of a particular request is to disclose the requested information. If there were no such presumption the question was whether, on their true construction, relevant statutory provisions empowered, and indeed required, the Information Commissioner to consider a public law question of reasonableness.
Held, allowing the appeal to a limited extent, that:
- while the authorities show that there is no presumption that public law questions can only be raised by invoking the courts’ supervisory jurisdiction, that does not mean that there is a presumption that the Information Commissioner, who is a regulator and not a tribunal, can determine public law issues, and the First-tier Tribunal’s functions are limited by reference to the functions of the Commissioner (paragraphs 38 to 47)
- the relevant functions of the Commissioner for present purposes were limited to making a decision whether, in any specified respect, a request for information made by a complainant to a public authority had been dealt with in accordance with the requirements of Part I of the 2000 Act. That might well require a view to be taken on the construction of a potentially relevant statutory bar on disclosure in other legislation, but in the circumstances of the present case it did not extend to asking the questions which might be asked on the subject of reasonableness by a court of supervisory jurisdiction examining a challenge to OFCOM’s failure to exercise powers available to it under the 2003 Act: Oxfam v Revenue and Customs Commissioners [2009] EWHC 3078 (Ch) distinguished (paragraphs 52 to 63)
- the tribunal in Hoyte had therefore erred in proceeding on the basis that either it or the Commissioner had a general jurisdiction to determine whether a public authority had acted unreasonably when exercising a discretion not to disclose information, and the Information Commissioner and tribunal in the present case had erred in adopting that approach. However, that error of law was immaterial to the outcome in the present case as the Commissioner was correct to conclude that OFCOM had dealt with the request for information in accordance with Part 1 of the 2000 Act (paragraphs 1 and 62).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by OFCOM.
The making of the decision of the Information Tribunal dated 11 March 2010 under file reference EA/2009/0067 involved an error of law. That decision is set aside. The Upper Tribunal re-makes the decision in the following terms:
The appeal to the First-tier Tribunal is allowed to a limited extent only. Two broadcasters had in fact consented to disclosure within the terms of section 393(1) of the Communications Act 2003. As a result, section 393(1) could not apply to such of the requested information as was provided by those two broadcasters. Accordingly, the First-tier Tribunal substitutes for the decision in paragraph 52 of the Information Commissioner’s Decision Notice (FS50184499 dated 22 July 2009) a decision as follows:
“The Office of Communications (OFCOM) is ordered to release to Mr Gerry Morrissey, within 28 days of this decision, the information provided by:
1. Radio North Angus Ltd., and
2. The Chinese Channel Ltd
in relation to question 4 of OFCOM’s ‘Questions for 2005 Returns’ in respect of equal opportunities reporting.”
As regards the remainder of the information sought by Mr Morrissey, the Information Commissioner’s decision examined the question whether OFCOM dealt with the request for information in accordance with Part 1 of the Freedom of Information Act 2000. When examining that question the Commissioner adopted the approach taken by the Information Tribunal in Hoyte v Civil Aviation Authority (EA/2007/0101), and in consequence thought it necessary to determine whether OFCOM acted reasonably in not disclosing the information requested in this appeal pursuant to section 393(2)(a) of the Communications Act 2003. This involved an error of law, for the tribunal in Hoyte erred in proceeding on the basis that either it or the Commissioner had a general jurisdiction to determine whether a public authority had acted unreasonably when exercising a discretion not to disclose information. In the event, however, this error of law was immaterial to the outcome in the present case: the Commissioner’s decision was correct to conclude as regards the remainder of the information sought that OFCOM had dealt with the request for information in accordance with Part 1 of the Freedom of Information Act 2000.
This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction
1. The Information Commissioner contends that, in some circumstances at least, he has power to review the reasonableness of a public authority’s decision. In the present case that public authority is the Office of Communications (OFCOM). The general contention advanced by counsel for the Information Commissioner is framed in this way in his skeleton argument:
“1. Various statutes – including the 2003 [Communications] Act with which this appeal is directly concerned – contain a general bar on the disclosure of information by a public authority that is itself subject to one or more specified exceptions. Requests may be made under FOIA [the Freedom of Information Act 2000] for information that falls within the terms of such a general bar. Further, cases may in principle arise where, given the exceptions to which the general bar is subject, the only rational course that is open to the public authority in response is to disclose the requested information. A public authority that refused disclosure in such circumstances would be acting unlawfully in a public law sense. Such unlawfulness would, of course, be susceptible to judicial correction. The central issue in this appeal is the forum for this. On OFCOM’s case, the individual who is seeking the information cannot obtain it in the Tribunal. Rather, he would need to bring a separate judicial review claim in the Administrative Court (with the associated cost risks, and without a procedural regime...
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...55. That position was established by the binding decision of the Upper Tribunal in in 2011 (Ofcom v Gerry Morrissey and the IC, 2011 UKUT 116 AAC). 56. The Commissioner considers that the LSB has discretion as to whether or not to disclose information under a gateway. She is satisfied that ......