Judgments - Sugar (Appellant) v British Broadcasting Corporation and another (Respondents)

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21.  Arguments of practicality cut little ice in the Court of Appeal. Nor did the arguments of construction, advanced on Mr Sugar’s behalf by Mr Eicke and Mr Lightman, who had generously agreed to represent him pro bono. Davis J had accepted the argument that, because of the way that it was described in Schedule 1 to the Act, any reference in the Act to a public authority only applied to the BBC in its capacity as a holder of public information. If the Balen Report was excluded information, then the Act did not apply. Mr Eicke argued that this interpretation was erroneous. Whenever the Act referred to a public authority the reference embraced the BBC without limitation for all purposes. Where, however, Parts I to IV of the Act imposed obligations on the BBC in relation to information, those obligations did not apply in the case of excluded information. The provisions of section 7 made this plain.

22.  Buxton LJ rejected this construction, but he held that even if it had been correct it would not have left Mr Sugar any better off. His reasoning appears in the following passage of his judgment.

“Let us suppose that when asked to revisit the Balen Report in a future case the Information Commissioner continues to assert, as he asserts before us, that the entry for the BBC in Schedule 1 does not mean:

‘…the BBC as a “public authority” when holding information held for purposes other than those of journalism, art or literature.’

but means:

‘The BBC as a “public authority” in all respects but its obligations as such public authority under this Act only apply in relation to information held for purposes other than those of journalism, art or literature.’

29. When he asked himself, under section 50(1), whether the BBC had dealt with Mr Sugar’s request in accordance with the requirements of Part I, the Information Commissioner has under his new understanding of his duties to decide whether the BBC’s Part I duties apply to the Balen Report viewed as information. Let us then assume that in the future case he will take the view of the journalism issue that he took in our case, and so will conclude the BBC did not have any duty to produce the Balen Report, not because (as he originally thought) the BBC is not a public authority in relation to the report; but because, as he now thinks, the Balen Report is not information of a category to which the BBC’s duties as a public authority extend. He will therefore write to the complainant exactly the same kind of letter as he wrote in our case. That will say that he is not making a decision under the section as to whether the requests have been dealt with in accordance with the requirements of Part I because Part I does not apply to the case, and so in section 50(3) terms the application would still not have been one ‘under this section'.”

23.  I agree with Buxton LJ that the result will be the same, whichever of the alternative approaches to construction of “public authority” that one adopts. I disagree, however, with his view of that result. The fallacy in his reasoning is the conclusion that, if the Balen Report was excluded information, Part 1 would not “apply to the case, and so in section 50(3) terms the application would still not have been one ‘under this section’“. The passage that I have emphasised is incorrect.

24.  Section 1 of Part I applies whenever a request for information is made to a public authority, whatever the nature of the information sought, whether the public authority holds the information or not and, in the case of a hybrid authority, whether the information is public or excluded information. I shall consider a little later how a hybrid authority has to respond if it holds the information but the information is excluded information. But even if the consequence of section 7 is that the hybrid authority is not obliged to respond at all in such a situation (as Miss Carss-Frisk QC submitted), section 50 entitles the inquirer to complain to the Commissioner if he considers that the public authority has not dealt with his request in accordance with the requirements of Part I. He can make that complaint whether he is right or wrong as to the adequacy of the public authority’s response. The appropriate response of the Commissioner in the situation postulated by Buxton LJ was that Part I did not apply to the Balen Report. Such a response would have been a “decision notice” under section 50(3), giving rise to a right of appeal to the Tribunal under section 57.

25.  The seminal question is whether Mr Sugar made a request for information to a public authority under section 1 of the Act. Let us first assume, as Davis J and Buxton LJ held, that the BBC was to be considered as a public authority only in relation to public documents. It does not follow that, if the Balen report was an excluded document, the request for its disclosure made to the BBC by Mr Balen was not made to the BBC as a public authority.

26.  When a request for information is specifically made under the Act to a hybrid authority it is axiomatic that the maker of the request is making it to the hybrid authority in its capacity as a public authority. That is because the obligations under the Act only apply to public authorities. So far as Mr Sugar was concerned, the terms of his letter of request made it quite clear that he was asserting that the BBC owed him a duty to provide the Balen Report in its capacity as a holder of public documents. He was well aware that the BBC would be under no duty to provide him with the information if it did not hold it as a public document and thus in its capacity as a public authority.

27.  It follows that, on the facts of this case, it was quite wrong to treat Mr Sugar as having made a request to the BBC other than in its capacity as a public authority simply because of the nature of the information that he was requesting. More generally, it would be quite impractical to adopt such an approach to a request for information made to a hybrid authority. What if the request was in generic terms and the authority purported to hold some information covered by the request for journalistic purposes and other such information as public information? This question was raised with Miss Carss-Frisk QC, who appeared for the BBC. She did not have a satisfactory answer. What if the BBC no longer held the information, or had never held it?

28.  I now adopt the alternative approach to the construction of “public authority” as used in the Act, namely that it embraces hybrid authorities for all purposes. On that approach it is clear that Mr Sugar’s request for information was made to a public authority within the terms of section 1.

29.  Although it does not affect the result, I consider that the alternative approach to construction is correct. That construction accords with the wording of section 7, in that it refers to “any other information held by the authority", which in context implicitly means “held by the public authority". Should there be doubt about that implication there is no room for doubt in the case of section 68(3), which deals with an amendment to the Data Protection Act 1998, for this speaks expressly of a public authority holding excluded information. The section provides.

“(6) Where section 7 of the Freedom of Information Act 2000 prevents Parts I to V of that Act from applying to certain information held by a public authority, that information is not to be treated for the purposes of paragraph (e) of the definition of ‘data’ in subsection (1) as held by a public authority.”

30.  Perhaps more significantly, this approach to the meaning of public authority explains why section 7 provides as it does. Neither Miss Carss-Frisk, nor indeed Buxton LJ, was able to postulate a meaningful role for that section.

31.  Whichever approach to the construction of ‘public authority’ is correct, the request for information made by Mr Sugar to the BBC was made to a public authority and section 1 of the Act applied to it. What was the BBC’s obligation on receipt of the request? That depends upon the answer to the journalism issue. If Mr Sugar is correct on this issue, the BBC was under an obligation under section 1(1)(b) to communicate the Balen Report to him. What if the BBC is correct, and the Balen Report was excluded information?

32.  The duty of a public authority under section 1(1) is to inform the inquirer in writing whether or not it holds “information of the description specified in the request". That is “the duty to confirm or deny” - see section 1(6). How does this apply in the case of the hybrid authority which holds the information as excluded information. If the BBC’s approach to the construction of “public authority” is adopted, the answer is easy. The application is made to the hybrid authority in its capacity as a holder of public information. Its reply is that, in that capacity, it does not hold the information.

33.  What if one adopts the alternative approach to the construction of public authority? My initial reaction was that the appropriate response will be to say that it holds the information but does not have to communicate it because it is not information to which its obligations under the Act apply. This is not, however, a satisfactory solution. In the present case the BBC was well aware that it held the information requested. But a hybrid authority will not always know whether it holds information of the description requested. Considerable time, trouble and expense may be involved in ascertaining whether it does. The hybrid authority may have a separate system for filing public information and excluded information. A request under section 1(1) cannot require the hybrid authority to search through its excluded information, simply in order to be in a position to tell the inquirer that it holds the information but has no obligation to disclose it. Nor does it. Section 7 confines the hybrid authority’s obligations to public information. Thus, its obligation under section 1 is to ascertain whether or not it holds information of the description requested as part of its public information, as specified in Schedule 1. If it does not, it is entitled to answer the inquirer “information of the description that you have requested does not form part of the information that I hold in respect of…” followed by the description of public information specified in Schedule 1.

34.  This response to an inquiry differs significantly from that required where a public authority is asked for information that it holds that is exempt information. This perhaps answers the question why the draftsman of the Act did not adopt the same approach to excluded information that he adopted to exempt information.

35.  The response given by the BBC in this case was more detailed than necessary if, as it claimed, the Balen Report was excluded information. On that premise, the response more than satisfied the BBC’s obligation under section 1 to “confirm or deny". The issue raised by Mr Sugar was, however, whether that premise was correct. That was an issue that he was entitled to raise by his complaint to the Commissioner under section 50 and the Commissioner had jurisdiction to entertain that complaint.

36.  By way of summary I shall set out the three short paragraphs of the Tribunal’s decision on jurisdiction that encapsulate lucidly, succinctly and correctly the conclusions that I have reached at rather greater length:

“22. In our view Mr Sugar made an information request to the BBC, which is a public authority within the meaning of FOIA. There was nothing in the formulation of the request to take it outside the ambit of FOIA. It was a request for information that was properly made under s.1 of FOIA.

23. The basis for the BBC’s rejection of his request was that, upon careful examination of the factual circumstances, the report which he asked for was (in the BBC’s view) held for the purposes of journalism. If the BBC was right in taking this view, that did not mean that Mr Sugar had not made an information request to the BBC as a public authority. In our judgment when, following the rejection, Mr Sugar applied to the IC, his application was made under s.50(1).

24. We consider that the IC’s duty under s.50(1) to consider whether a request has been dealt with in accordance with the requirements of Part I can include, in appropriate cases, consideration of whether Part I lays down any requirements for the particular information in question. The Commissioner was entitled to decide that failure to produce the report was not a contravention of the requirements of Part I. In the present case he effectively so decided. That was in substance a decision under s.50.”

Did the Commissioner serve a Decision Notice?

37.  The last two sentences quoted above answer this question. The issue that the Commissioner was asked to resolve by Mr Sugar by his letter of complaint was whether the BBC was correct to contend that the Balen Report was held “for the purpose of journalism". The Commissioner decided that question. He found that the BBC was not under an obligation to release the contents of the Report. This was a decision that Mr Sugar was entitled to challenge before the Tribunal, provided that the Commissioner had conveyed it to him in a “decision notice". Section 50 of the Act does not prescribe the form of a “decision notice". I consider that this phrase simply describes a letter setting out the Commissioner’s decision. That is precisely the letter that the Commissioner wrote to Mr Sugar. His letter does not suggest that the request or the complaint was not within the Act, or that the Commissioner had no jurisdiction to make a decision or that he was not making a decision. On the contrary it opened by referring to “Your request for information from the BBC under the Freedom of Information Act 2000” and later stated that “it is the Commissioner’s final decision …for the purposes of your request…". It is true that the Commissioner said that “the BBC is not a public authority under the Act” and that he referred to Mr Sugar’s right to request a judicial review. These statements do not make his letter any the less a “decision notice". It is also true that the Commissioner subsequently asserted to the Tribunal that he had neither had jurisdiction to issue a decision notice nor done so, but that assertion cannot affect the question of whether his letter had in fact amounted to a “decision notice” any more than his subsequent volte face on that question.

38.  For these reasons I am satisfied that the Tribunal had jurisdiction to make the decision that it did. I would allow this appeal. If the appeal is allowed it will follow that the governing decision on the journalism issue is that of the Tribunal, and that the only possible appeal from that decision lies to the High Court on a point of law. The BBC’s outstanding appeal should therefore be remitted to the Administrative Court for determination. Davis J has, of course, already ruled on the journalism issue, but he approached that issue as one raised in a judicial review challenge by Mr Sugar of the Commissioner’s decision on the point. He applied the Wednesbury test, asking himself whether the decision of the Commissioner was “a lawful and rational one, properly open to him on the material before him", para 59. That is not the test that he should have applied had he concluded, as he should have done, that the Tribunal’s decision was made with jurisdiction and that BBC’s only right to challenge it was on the ground that it was wrong in law. It follows that the result of allowing this appeal will be to restore the Tribunal’s decision.

LORD HOFFMANN

My Lords,

39.  Part I of the Freedom of Information Act 2000 imposes duties on “public authorities". If someone asks a public authority for information, it is in principle obliged to say whether it holds the information and, if it does, to disclose it. There are however categories of information, which the Act calls exempt information, to which one or both of these duties do not apply. They are listed in Part II. A public authority which holds exempt information is in some cases obliged to say whether it holds it but not to disclose it. In other cases it is not obliged even to confirm or deny that it holds the information.

40.  Section 50 of the Act confers upon the Information Commissioner jurisdiction to decide whether “a request for information…to a public authority has been dealt with in accordance with the requirements of Part I.” The Commissioner therefore has jurisdiction to decide whether the information requested is exempt information. If it is, non-disclosure may have been in accordance with the requirements of Part I.

41.  But what if the body from which information has been requested denies that it is a public authority as defined in the Act? In such a case, it is not saying that it has dealt with the request in accordance with the requirements of Part I. It is saying that those requirements do not apply to it. In most cases, of course, the question of whether a body is a public authority could not be the subject of rational dispute. Public authorities are defined by section 3 (supplemented by sections 4 and 5), principally by reference to a list in Schedule 1. The list names of a large number of bodies, such as the House of Lords and the English Sports Council. For the most part, you are either on the list or you are not. But there are some generic descriptions which may have fuzzy edges over which there could be dispute. To take an example at random, under paragraph 53, the governing body of any college of a university which receives financial support under section 65 of the Further and Higher Education Act 1992 is a public authority and, by subparagraph (2)(d), “college” includes any institution “in the nature of a college". If some “institute” or “centre” connected with a university receiving support denies that it is an institution “in the nature of a college", does the Commissioner have jurisdiction to decide whether it is a public authority? I should have thought not. Jurisdiction under section 50 only exists if the request has been made to a public authority. That question is anterior to the power of the Commissioner to decide whether the requirements of Part I have been met.

42.  Maybe it would have been better if Parliament had conferred upon the Commissioner a power to decide (subject to appeal) the limits of his own jurisdiction - what writers on international arbitration call kompetenz kompetenz, jurisdiction to decide jurisdiction. That would have given the parties, in cases in which jurisdiction was disputed, the advantages of one-stop adjudication, instead of having to go to court for a ruling on whether the Commissioner has jurisdiction and then, if successful, to the Commissioner for a ruling on the merits. But that is not what Parliament has done. There are of course many cases in which statutory tribunals have power to make findings as to the facts on which their jurisdiction depends: see for example Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 696. But that is not the case here. Everyone agrees that section 50 does not allow the Commissioner to confer jurisdiction on himself by a finding that a body is a public authority: see, for example, Lord Neuberger of Abbotsbury, at para 82. It is either a public body or it is not. If that question is disputed, it must be decided by a court.

43.  The disadvantages of not giving the Commissioner power to decide his own jurisdiction are particularly acute in cases like the present in which the statute defines a public authority by reference to the nature of the information which it holds. There are several such cases in Schedule 1: in some of them, a body is a public authority only in respect of a particular class of information and in others it is a public authority in respect of everything except a particular class or classes of information. Thus, in the present case, the BBC is a public authority for all purposes except in respect of information which it holds for the purposes of “journalism, art or literature", while the Under-Treasurer of the Middle Temple is a public authority for no purposes except in respect of information which he holds in his capacity as a local authority. I do not think it matters whether the definition is inclusive or exclusive. What matters is that status as a public authority is defined by reference to the nature of the information held.

44.  The question in the present case is whether the Commissioner has jurisdiction to decide whether or not the nature of the information held by the BBC (a report on its coverage of the Israel-Palestinian dispute) does or does not bring it, for the purposes of the Act, within the definition of a public authority. In my opinion he plainly does not. The question he is being asked to decide is whether the BBC is a public authority and this is not a question which he has jurisdiction to decide.

45.  I would accept that since the question turns upon the nature of the information, and is very similar to the question of whether information held by a public authority is exempt or not, it may have been better if Parliament had conferred such jurisdiction upon the Commissioner. Not only would he provide one-stop adjudication but he would seem a more appropriate tribunal than the Queen’s Bench judge exercising the traditional judicial review power to determine the jurisdiction of an inferior tribunal. But the Act does not do so and I do not think it is open to your Lordships to amend it.

46.  I have read with attention and respect the draft speeches of Lord Phillips of Worth Matravers and Lord Neuberger of Abbotsbury, but both seem to me to be constructed upon premises which beg the question to be answered. Lord Phillips, for example, has invented a category of information which he calls “excluded information", for which there is no basis in the Act, for the purpose of an argument that the question of whether information is excluded information is really much the same as whether information is exempt information, the latter being a question which the Commissioner undoubtedly does have jurisdiction to decide. In fact, there is no such thing as excluded information. What the Act does is notionally divide a single person or body into two, one of which is a public authority and the other is not. In so far as it holds information in respect of certain activities, it is a public authority and subject to the Act. In respect of information held for other activities, it is not. The Under-Treasurer of the Middle Temple is notionally two people, one of which is a public authority (when acting in the capacity of a local authority) and the other is not. That is not at all the same as being a single undivided public authority which is not obliged to disclose “excluded information".

47.  Parliament could certainly have proceeded differently. If the intention was that the BBC should not have to disclose information relating to its journalistic activities, it could have achieved much the same result by saying without qualification that the BBC was a public authority but that such information should be exempt. It did not do so. Instead, it chose to limit the BBC’s status as a public authority, and therefore its amenability to any of the provisions of the Act, by reference to whether the information was held for journalistic purposes or not. And it underlined this choice (perhaps unnecessarily) by providing in section 7(1) that when a public authority was listed in Schedule 1 only in relation to information of a specified description, “nothing in Parts I to V of the Act” should apply to any other information held by the authority. Section 50, which confers jurisdiction upon the Commissioner, is in Part IV.

48.  Then it is said that the applicant Mr Sugar made his request to the BBC in its capacity as a public authority. But what does this mean? The question of whether the Commissioner has jurisdiction cannot turn upon Mr Sugar’s subjective opinion as to whether he was addressing the BBC’s public authority or non-public authority persona. The Commissioner cannot acquire jurisdiction to decide whether the Under-Treasurer of the Middle Temple is a public authority for the purpose of information about its benchers because the applicant intended to address the application to him in that capacity. The definition of a public authority is by reference to the purpose for which the information is held, not the purpose for which the inquirer may think it is held.

49.  The contrary argument appears to assume that a body must be one and indivisible, either a public authority or not. This argument is supported by the invention of another new term, a “hybrid authority", which is intended to suggest that there is a single authority which can be characterised as a public authority. But this construction is contrary to the plain statutory intention to treat the body in question as if it were two bodies, one of which is a public authority and the other not. But once one accepts that this was the effect of the Act, there can be no distinction between a decision as to whether a body (such as an institution “in the nature of a college”) is for all purposes a public authority, and a decision as to whether a body’s relevant persona is a public authority. In both cases the question is anterior to the jurisdiction of the Commissioner and in neither case does the Act confer upon him jurisdiction to decide it.

 
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