Sugar and another v British Broadcasting Corporation (No 1)
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS OF WORTH MATRAVERS,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 11 February 2009 |
| Neutral Citation | [2009] UKHL 9 |
| Court | House of Lords |
| Date | 11 February 2009 |
[2009] UKHL 9
HOUSE OF LORDS
Appellate Committee
Lord Phillips of Worth Matravers
Lord Hoffmann
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
and another
Appellant:
Tim Eicke
David Craig
Siddharth Dhar
(Instructed by Forsters LLP)
Respondents:
Monica Carss-Frisk QC
Kate Gallafent
(Instructed by BBC Litigation Department)
My Lords,
Introduction
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".
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".
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.
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.
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 is divided into eight parts. Those that are significant in the context of this appeal are the following.
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i) Part I: This provides for the right to access to information held by public authorities;
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ii) Part II: This sets out a large number of categories of 'exempt information';
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iii) Part IV: This deals with enforcement;
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iv) Part V: This deals with appeals;
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".
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.
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'.
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...
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