Sugar and another v British Broadcasting Corporation (No 1)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Lloyd,Sir Paul Kennedy |
| Judgment Date | 25 January 2008 |
| Neutral Citation | [2008] EWCA Civ 191 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2008 |
| Docket Number | Case No: C1/2007/1078 |
[2008] EWCA Civ 191
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
(MR JUSTICE DAVIS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Lloyd and
Sir Paul Kennedy
Case No: C1/2007/1078
Mr T Eicke and Mr D Lightman (instructed by Forsters LLP) appeared on behalf of the first Appellant.
Mr B Hooper (instructed by The Information Commissioner) appeared on behalf of the second Appellant.
Miss M Carss-Frisk QC and Ms K Gallafeut (instructed by BBC Litigation & Intellectual Property Department) appeared on behalf of the Respondent.
This is an appeal from a judgment of Davis J reported [2007] 1 WLR 2583. I set out only as much as is necessary to understand these issues in this appeal. The judgment below is, with respect, an impressive survey of the case as it stood before the judge, which can safely be referred to by anyone who wants to know more about the history of the matter.
The case concerns the procedures under the Freedom of Information Act 2000 (“the Act”). The Act, as its long title says, makes provision for disclosure of information held by public authorities, and by Part I gives persons generally rights to enquire of public authorities whether they hold information of the description specified in the request and, if so, to have the information communicated to them. That latter right is subject to certain limitations, none of which arise in our case.
The first stage in the enforcement of these rights is that a person who has unsuccessfully sought information from a public authority can apply to the Information Commissioner. The Information Commissioner is the officer originally known as the Data Protection Commissioner, a public official appointed by letters patent. The reach and terms of such an application are set out in section 50(1)-(3) of the Act:
“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 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.”
Section 50 is contained within Part IV of the Act which is entitled “Enforcement”. Part of that enforcement function is provided in section 50(4), relating to the serving of a decision notice, section 51 provides for the Information Commissioner to seek further information from the public authority. Section 52 enables the Information Commissioner to serve an enforcement notice on the public authority, requiring it to take specified steps to comply with its obligations under Part I of the Act, and section 54 provides that if the public authority fails to comply with any of a decision, information on enforcement notice, he may certify that lack of compliance to the High Court.
Section 57 then provides for appeals to the Information Tribunal, an independent judicial body. By section 57(2) the public authority may appeal against an information or enforcement notice. By section 57(1):
“Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.”
It will be noted that the whole scheme depends on the body from which the complainant seeks information being a public authority. By section 31 (a)(1) a “public authority” is any body which is listed in schedule 1 to the Act. Schedule 1 relevantly contains the entry:
“The BBC, in respect of information held for purposes other than those of journalism, art or literature”
I turn to the information the production of which was disputed in the exchanges that led up to these proceedings. That is, with respect, well set out in paragraphs 3–4 of Davis' J judgment;
“A number of persons and lobby groups has in the past expressed the view that the reporting by and news coverage of the BBC in relation to the Middle East and in particular the conflict between Israel and the Palestinians was not even handed. Because of the concerns raised the BBC decided to ask Mr Malcolm Balen, a very experienced journalist, to advise on the coverage by the BBC of Middle Eastern matters. During 2004 Mr Balen produced an internal written report. This was eventually placed for consideration by the Journalism Board of the BBC on 9 th November 2004. Subsequently in 2005 a panel, chaired by Sir Quentin Thomas, was appointed by the Board of Governors of the BBC to provide an external independent review of BBC reporting of Middle East affairs. That panel reported in April 2006. In the meantime the BBC had created the post of Middle East Editor, Mr Jeremy Bowen being appointed and taking up his post in June 2005.
The Balen Report has never been published. Mr Sugar wished and wishes to see it. He has taken the view that he was entitled to see it under the provisions of the Freedom of Information Act 2000 (“the FOIA”). He made a written request to the BBC accordingly on 8 th January 2005. The response of the BBC was to the effect that the Balen Report directly impacted on the BBC's reporting of crucial world events and that the FOIA did not apply.”
Mr Sugar's reaction to that refusal, and the subsequent involvement of the Information Commissioner and the Information Tribunal, is set out paragraphs 5–9 of the judge's judgment:
“By a detailed letter of 24 th October 2005 the IC set out his provisional view that the Balen Report was held for the purposes of journalism, art and literature (what before me was, for shorthand convenience, called 'the derogation'); and that in the circumstances the BBC was not a public authority under the FOIA in respect of Mr Sugar's request and was not obliged to release the contents of the Balen Report. Mr Sugar did not seek to submit to the IC any further comments (although invited to do so); and on 2 nd December 2005 the IC confirmed his final decision that the Balen Report was not disclosable, on the basis previously indicated in the provisional decision letter. The letter concluded with the words: 'I would also like to take this opportunity to inform you of your right to request a Judicial Review of our decision.
Mr Sugar did not at that time seek a Judicial Review of that decision. Instead on 30 th December 2005 he sought to appeal to the Information tribunal ('the Tribunal') invoking the provisions of s.50 of the FOIA for that purpose. The position of the IC at the time was that Mr Sugar had no right of appeal under s.50, that the IC had served no appealable decision notice and that the Tribunal had no jurisdiction to entertain such an appeal. That also was the view of the BBC.
A preliminary issue was directed by the Tribunal on the jurisdiction point, it having indicated an initial view that it did have jurisdiction. A hearing was then held on 14 th June 2006 and a ruling given. It appears that the IC had by then had a change of mind and was not now disputing the jurisdiction of the Tribunal. The BBC, however, was.
By its decision dated 14 th June 2006, and formally issued on 29 th August 2006, the Tribunal ruled that it did have jurisdiction to entertain Mr Sugar's appeal. Having so ruled, the Tribunal then proceeded to deal with the substantive issue raised on the appeal (which in argument before me was called 'the journalism issue'). The hearing in total before the Tribunal lasted some 3 days. A good deal of evidence – both written and oral – was adduced, much of which had not been employed before the IC. Mr Sugar appeared in person at that hearing; the IC and the BBC was each represented by counsel. At the hearing the BBC was arguing for a broad approach to the phrase 'for the purposes of journalism' by reference to the provisions of the FOIA (to which I will come). Mr Sugar was arguing for a narrower approach.
The decision of the Tribunal on the journalism issue, also issued on 29 th August 2006, set out a summary of the evidence and arguments deployed. The Tribunal indicated that, in effect, the Balen Report could indeed be said to have been created for the purposes of journalism. But it decided, on its view of the evidence, that by the time of Mr Sugar's request of 8 th January 2005 the Balen Report was not held for the purposes of journalism. Perhaps the nub of the Tribunal's reasoning is to be found in paragraph 133 of its decision:
'The Tribunal is clear that, when originally commissioned, Mr Balen's work was for predominantly journalistic purposes. It formed a part of the third leg of the meaning of journalism that the Tribunal has adopted, in that it was primarily an output review intended to assure and enhance quality. However, when elevated to the Journalism Board on 9 th November 2004, as a formal report,...
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