| FREEDOM OF INFORMATION — Public authority — British Broadcasting Corporation — Application for disclosure of internal BBC report — Information Commissioner deciding BBC not “public authority” for purpose of request — Whether report held for “purposes other than those of journalism, art or literature” — Whether decision of Commissioner subject to appeal to Information Tribunal — Whether subject to judicial review — Freedom of Information Act 2000, ss 3(1), 7(1), 50, 57, Sch 1)
British Broadcasting Corporation v Sugar and another; R (British Broadcasting Corporation) v Information Tribunal; R (Sugar) v Information Commissioner; [2008] WLR (D) 14
CA: Buxton, Lloyd LJJ and Sir Paul Kennedy: 25 January 2008
The BBC was a public authority to a limited extent in respect of information not held for the purpose of journalism and not otherwise; and that the information tribunal had no jurisdiction to consider a letter which on its face had not been a decision letter of the Information Commissioner.
The Court of Appeal so stated dismissing an appeal of the complainant, Steven Sugar, from the decision of Davis J [2007] 1 WLR 2583 who had held that it was only in respect of information held by the British Broadcasting Corporation otherwise than for the purposes of journalism, art or literature that the BBC was a public authority subject to the requirements of Pts I to IV of the Freedom of Information Act 2000 when (1) allowing the BBC’s appeal under s 59 of the 2000 Act and granting the BBC’s claim for judicial review of the decision of the Information Tribunal on 14 June 2006 that it had jurisdiction to entertain the complainant’s appeal against the decision of the Information Commissioner dated 2 December 2005 that the Balen Report was not disclosable, and the decision of the Information Tribunal that at the time of the complainant’s request for a copy of that report it was held for purposes other than those of journalism, art or literature; and (2) dismissing the complainant’s claim for judicial review of the decision of the Information Commissioner that the Balen Report was not disclosable.
BUXTON LJ said that the major dispute between the parties concerned the jurisdiction issue: that was, whether the Information Tribunal should have entertained the complainant’s appeal at all. S 57(1) of the 2000 Act provided that when a decision notice had been served the complainant or the public authority might appeal to the Information Tribunal against the notice . Thus, serving of a decision notice was a condition precedent to the Information Tribunal doing anything; and it was the decision notice, and nothing else, which was appealed against. That did not come into play unless the condition preliminary to the operation of the section was satisfied. The first question for the Information Commissioner was therefore whether he had received such an application, that was whether he had been asked for a decision as to the handling of a request for information made to a public authority. By s 50(1) of the 2000 Act the issue before him would be whether a request to a public authority had been dealt with in accordance with the requirement of Pt I of the Act. But if the Information Commissioner decided that the request had not been made to the public authority he did not and could not make a decision as to whether the public authority had dealt with the request in accordance with Pt I of the Act. And it was only such a communication that, by the specific wording of s 50(3)(b) was defined as a “decision notice” for the purpose of s 57. In the present case, the Information Commissioner considered that in respect of the Balen Report and the BBC’s handling of a request in relation to it, did not fall under the statute at all. By s 3 a public authority was a body that was listed in Sch 1. The plain meaning of that listing was that the BBC was a public authority in respect of information not held for the purpose of journalism and not otherwise. That was what the words meant, and therefore there would be no reason to go behind them except for the forensic purposes deployed in this case. The Information Tribunal did not have jurisdiction unless a decision letter had been issued. There was no justification for the court subverting that limited statutory rule by treating a document that on its face was not a decision letter, and which was thought by its authority at the time not to be a decision letter, as being counterfactually a decision letter after all.
LLOYD J gave concurring judgment.
SIR PAUL KENNEDY agreed.
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