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

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50.  For these reasons, as well as those given by Davis J and the Court of Appeal, I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

51.  I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Phillips of Worth Matravers and Lord Neuberger of Abbotsbury. I agree with them that the Information Commissioner had jurisdiction to resolve the issue that Mr Sugar raised in his letter of complaint against the BBC, and I too would allow the appeal. Like Lord Neuberger, I should like to set out my own reasons for doing so.

52.  It seems to me to be preferable to avoid using the expressions “excluded information” and “hybrid authority". The expressions which the Freedom of Information Act 2000 uses, like its counterpart in Scotland the Freedom of Information (Scotland) Act 2002, asp 13, are “information” and “public authority": see section 84 of the 2000 Act (“the Act”). The expression “excluded information” is used in section 7(8). But this is confined to cases where the Secretary of State wishes to exclude information of a particular description held by a publicly owned company from Parts I to V of the Act. Otherwise it is not used, as my noble and learned friend Lord Hoffmann points out. Nor is the expression “hybrid authority". I agree with him that a body is either a public authority or it is not, and that if that question is disputed that question must be decided by a court. But this assumes that the question whether the body is or is not a public authority is genuinely open to dispute. This depends on how one reads the Act. It is a question of construction which, in the case of the BBC at least, requires one to look no further than what the Act itself provides.

53.  As I read the Act, the question whether the BBC is or is not a public authority admits of only one answer. The fact that it is listed by name in Schedule 1 tells one all that one needs to know to answer the question in the affirmative. Section 3(1)(a)(i) provides that in the Act “public authority” means any body which is listed in Schedule 1. Schedule 1 goes to elaborate lengths to list the bodies to which this definition applies. The BBC, along with many other public bodies, is listed by name in Part VI of the Schedule. Had it not been for the qualification that follows in its case, there would be no room for dispute on the question whether the Commissioner had jurisdiction to deal with Mr Sugar’s complaint. The question is whether the fact that it is listed only in relation to information of a specified description (“in respect of information held for purposes other than those of journalism, art or literature”) makes a difference. The answer, I think, is to be found in section 7.

54.  Section 7(1) says that 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 the Act applies to any other information held by the authority. What it does not say is that, in that case, the authority is a hybrid - a “public authority” within the meaning of the Act for some of the information that it holds and not a “public authority” for the rest. The technique which it uses is a different one. Taking the words of the subsection exactly as one finds them, what it says is that nothing in Parts I to V of the Act applies to any other “information” held by “the authority". This approach indicates that, despite the qualification that appears against its name in Schedule 1, the body is public authority within the meaning of the Act for all its purposes. That, in effect, is what section 3(1) of the Act provides when it says what “public authority” means “in this Act". The exception in section 7(1) does not qualify the meaning of “public authority” in section 3(1). It is directed to the information that the authority holds on the assumption that, but for its provisions, Parts I to V would apply because the holder of the information is a public authority.

55.  Section 7(2) tends to confirm this approach. It refers to section 4, which enables the Secretary of State by order to amend Schedule 1 by adding to it a reference to any body or the holder of any office which is not for the time being listed in the Schedule. Although it does not say so in terms, the effect of doing this is to apply section 3(1) with the result that, by virtue of its having been listed, the body or office-holder becomes for the purposes of the Act a “public authority". This leaves open the question as to the effect of a listing which, as in the BBC’s case, lists “the public authority” (as section 7(2) puts it) only in relation to information of a specified description. If this is how it is listed, section 7(1) provides the answer. Nothing in Parts I to V applies to any other information held by the authority. Then there is section 7(3), which enables the Secretary of State to amend Schedule 1 by limiting the entry to “information” of a specified description or by removing or amending that limitation. Here again the mechanism is the same. The body that is listed is a public authority for the purposes of the Act. The question whether or not Parts I to V apply to the information to which the person making the request under section 1(1) seeks access depends on the way the public authority is listed. If its listing is unqualified, Parts I to V apply to all the information that it holds. If it is listed only in relation to information of a specified description, only information that falls within the specified description is subject to the right of access that Part I provides. But it is nevertheless, for all the purposes of the Act, a public authority.

56.  I agree with Lord Hoffmann that there are some descriptions in Schedule 1 which have fuzzy edges over which there could be dispute. The example that he has given is to be found in para 53 of the Schedule. There may be others. But there is nothing fuzzy-edged about the BBC. In common with all the other public bodies and offices listed in Part VI of the Schedule the name tells one all one needs to know. That, indeed, is the purpose of the listing. Its purpose is to enable people who wish to exercise the general right of access to exercise it without having to go to the courts to find out whether the body or office-holder to whom the request is directed is a public authority within the meaning of section 1(1). As the commentators on the Freedom of Information (Scotland) Act 2002 in Current Law Statutes explain in their general note on section 3 and Schedule 1, clarity of coverage in advance was understood by the legislature to be vital. It was appreciated that to replace the list in Schedule 1 with an omnibus provision that the Act applied to bodies that provided a public service could lead to endless litigation. This was contrary to the principle that the primary role in enforcing the Act should rest with the Commissioner and not the courts: section 47(1). The system of listing is elaborate and, as section 7 recognises, will require constant monitoring to ensure that it is kept up to date. Its value, however, is that it reduces to the minimum the scope for dispute about whether a particular body or office-holder is, or is not, a public authority.

57.  I accept that if there is a genuine dispute as to whether a particular body or office-holder answers to a description that is set out in the Schedule it will have to be resolved by the courts. The Commissioner cannot determine his own jurisdiction. But I do not share Lord Hoffmann’s view that it was the intention of the statute to treat a public body or office-holder which is listed only in relation to information of a specified description as if it were two bodies, one of which is a public authority and the other not. Nor do I agree with the use of the expression “hybrid authority". Both approaches seem to me to be contrary to the system that sections 3, 4 and 7 have described.

58.  There are other reasons for concluding that the Commissioner has jurisdiction under section 50 to determine the question that Mr Sugar has raised, as Lord Phillips and Lord Neuberger have explained. But I would base my agreement with their conclusion primarily on the way I think the Act should be read and, in particular, the effect of listing the BBC by name in the Schedule. In my opinion this is, in itself, a sufficient reason for allowing the appeal.

BARONESS HALE OF RICHMOND

My Lords,

59.  I have the misfortune to agree with the five other judges who have concluded that the Information Tribunal did not have jurisdiction to entertain an appeal in this case and thus to disagree with the three of your lordships who have concluded that it did. I have the further misfortune to believe that the result which we favour is by no means as odd or inconvenient as might at first sight appear.

60.  My reasons for concluding that the Tribunal did not have jurisdiction are essentially the same as those given by Davis J in the Administrative Court, by Buxton LJ in the Court of Appeal, and by my noble and learned friend Lord Hoffmann in this House. The Tribunal only has jurisdiction if the Commissioner has served a decision notice: see section 57(1). The only decision which the Commissioner is empowered to make by a formal decision notice is “whether … a request … to a public authority has been dealt with in accordance with the requirements of Part I": see section 50(1). This obviously does not include every conclusion reached by the Commissioner in the course of handling applications from complainants. He does not, for example, have to make a formal decision if he concludes that any of the four reasons for not doing so, specified in section 50(2), applies. Nor, in my view, does he have power to issue a formal decision if he concludes either that the person or body to whom the request for information was made is not a public authority within the meaning of the Act or that Parts I to V of the Act do not apply to the information in question.

61.  Section 3(1) defines a public authority in three ways: a body, person or holder of an office listed in Schedule 1 (which may be amended by order in the circumstances laid down in section 4); a body, person or holder of an office designated by order under section 5; and a publicly owned company as defined by section 6. Nowhere is the expression “hybrid authority” used. A body, person, office or company is either a public authority for the purpose of the Act or it is not.

62.  A small number of the listings in Schedule 1 define the body, person or office by reference to a particular type of information. In some, the information in respect of which the body is a public authority is defined. Lord Hoffmann has already mentioned the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple (as members of Gray’s Inn, which is not listed at all, we can make this point without embarrassment), who are public authorities only “in respect of information held in his capacity as a local authority". More strikingly, perhaps, general practitioners, dentists, opticians and pharmacists are public authorities only “in respect of information relating to the provision of . . . services” to the National Health Service. These are obvious example of people who wear two hats: one as a public authority and one as a private person or supplier of private services. In respect of what they do other than as a local authority or for the NHS such people are clearly not public authorities at all.

63.  In other cases, the information in relation to which the body is not a public authority is defined. Bank of England is a public authority in respect of all the information it holds, other than the three categories of information listed in the Schedule. The other three such bodies are the BBC, the Channel Four Television Corporation, and Sianel Pedwar Cymru, which are public authorities “in respect of information held for purposes other than those of journalism, art or literature". I can well understand how tempting it is to say that these four bodies do not obviously wear two hats. They are simply excused from the Act’s requirements in respect of a particular type of information which they hold in the course of the performance of their normal functions as a public authority.

64.   However, I do not think that it is possible to take one approach to the construction of the list in respect of the inclusionary definitions and another approach in respect of the exclusionary ones. In both, the body, person or office holder is a public authority in some respects and not a public authority in others. This is if anything reinforced by section 7(1): “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". If “information of a specified description” applied only to the inclusionary definitions, then what would be the position? Bodies such as the BBC would be public authorities for all purposes but section 7(1) would not apply? Parts I to V of the Act would apply to them but with some sort of exception for the excluded information? No-one has argued for that construction. It is inconsistent with the whole scheme of the Act in relation to exemptions. Section 7(1) must apply to both types of definition in Schedule 1

65.  It is of course arguable that section 7(1) is unnecessary if a body, person or office holder is not a public authority at all in respect of the excluded information. But such belt and braces provisions are not at all uncommon. They do not detract from the construction which appeared obvious both to Davis J and to Buxton LJ, with whom both Lloyd LJ and Sir Paul Kennedy agreed. Furthermore, I am inclined to agree with Buxton LJ that it makes no difference to the present issue. The Commissioner has to decide whether to proceed with an application. He may decline to do so on the ground that the body, person or office holder is not a public authority at all. Or he may decline to do so on the basis that section 7(1) provides that nothing in Parts I to V of the Act applies to the particular information requested from the body, person or office holder concerned. Either way, that is not “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” within the meaning of section 50(1).

66.  I suspect, moreover, that had this question arisen in relation to a request for information about a dentist’s private patients it would not have reached this House. The problem has arisen because the same legislative technique has been used in respect of two rather different types of exclusion, the “two hats” case and the “excluded information” case. Lloyd LJ could see that the result could be said to be “odd and inconvenient” (para 48) and agreed that it was “odd” (para 50). Davis J described it as “potentially inconvenient” (para 31) and “in some respects inconvenient” (para 38) and the contrary conclusion as “manifestly convenient” (para 44).

67.  The oddity is that if the Commissioner concludes that the body, person or office holder concerned is a public authority and that the Act’s requirements do apply to the information in question, then, whatever he decides about whether those requirements have been complied with, there will be a decision within the meaning of section 50(1) which can be appealed to the Tribunal. It would potentially also be susceptible to judicial review on the ground that the Commissioner had exceeded his jurisdiction.

68.  The inconvenience is that Tribunals have many advantages which courts do not: their procedures are meant to be more informal and user friendly for unrepresented litigants; as a general rule, there is little or no risk of having to pay the other side’s costs; and the panel contains particular expertise in both the factual subject matter and the law which is often complex. When compared with the alternative of judicial review in the administrative court, there are the additional advantages that there is no requirement for leave and the Tribunal has power to review questions of fact and discretion as well as law: see section 58(1) and (2).

69.  But the underlying dispute in these proceedings is whether the Balen Report into the BBC’s coverage of Middle Eastern issues was “information held for purposes other than those of journalism, art or literature". There is no issue of fact, in the sense that the content of the document is not in dispute. There is no exercise of discretion, in the sense that a decision maker has to balance different considerations in arriving at a choice between different outcomes. The question is whether the statutory language applies to the document in question. The meaning of the statutory language is a question of law; its application to the document in question, assuming a correct understanding of the law, is a question of fact: see Edwards v Bairstow [1956] AC 14. This means that a court with jurisdiction to determine only questions of law will not interfere with such a decision unless it falls outside the bounds of reasonable judgment. The distinction is not, however, clear cut. As Lord Hoffmann pointed out in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, at para 26, “It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category". He went on to comment, at para 27:

“ . . . it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question.”

70.  In this particular case, the Act has not given the Commissioner an express power to decide whether a particular person, body or office holder is a public authority. In practice, he may occasionally have to do that in order to decide whether to proceed with an application. But there is nothing obviously inconvenient or unprincipled in leaving the matter to be resolved by him under the supervision of the courts, rather than introducing the Tribunal into the equation. It is a different type of question from the freedom of information questions over which the Tribunal does have jurisdiction. These may well involve questions of fact in the usual sense, or questions of what it is reasonable to expect of a public authority when faced with a particular request for information, or questions of balancing the public interest in disclosure against the public interest in maintaining an exemption. These are all matters in which the Commissioner and the Tribunal may be expected to build up a body of specialist knowledge and expertise. The question of whether a particular body, person or office holder is a public authority, which as Lloyd LJ pointed out will only rarely arise, does not depend upon the same sort of specialist knowledge and expertise.

71.  For those reasons, in addition to those given by both the courts below and by Lord Hoffmann, I too would dismiss this appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

72.  The issue raised by this appeal concerns the powers of the Information Commissioner (“the Commissioner”) and the Information Tribunal (“the Tribunal”), following a request under section 1 of the of the Freedom of Information Act 2000 (“the Act”) to the British Broadcasting Corporation (“the BBC”), in respect of information which the BBC contends is “held for purposes … of journalism, art or literature” (and I shall refer to such information as “excluded”).

73.  The facts giving rise to the appeal and the relevant statutory provisions are fully set out by my noble and learned friend Lord Phillips of Worth Matravers in his opinion, which I have had the privilege of reading in draft. As he explains, the principal question to be decided is whether the Commissioner has jurisdiction to entertain an application under section 50 of the Act from an applicant who has made a request to a hybrid authority for information, which has been rejected on the ground that such information is excluded. I agree with his conclusion that the Commissioner has such jurisdiction, but would like to explain why in my own words, not least because I had initially been of the contrary view.

74.  As a result of the provisions of section 3(1), Schedule 1 (insofar as it describes the BBC and other hybrid authorities), and section 7(1), it is clear that Parts I to V of the Act do not apply to excluded information held by the BBC or any other hybrid authority. The BBC’s case, accepted by Davis J and the Court of Appeal, is that the Commissioner and the Information Tribunal therefore have no jurisdiction under section 50 and section 57 respectively, to rule on a contention raised by a hybrid authority that information requested from it is excluded. Mr Sugar, on the other hand, contends that the statutory jurisdiction of the Commissioner and the Tribunal does extend to determining the correctness of a hybrid authority’s contention that the requested information is excluded.

75.  In the light of the way that the Act is structured and expressed, there is a powerful case to be made out for the conclusion arrived at by the Court of Appeal, namely that the Commissioner has no such jurisdiction. In a nutshell, that case is as follows. By virtue of section 3(1)(a) and Part VI of Schedule 1, the Act applies to a hybrid authority, such as the BBC, only insofar as it holds information other than excluded information; accordingly, where a hybrid authority says that the information requested is excluded, the Commissioner has no jurisdiction under the Act to determine if the information is excluded, as, if it is excluded, the authority is not a public authority, and the Act does not apply. This conclusion is said to be reinforced by section 7(1), which provides that, where information is excluded, “nothing in Parts I to V of [the] Act applies to [such] information"; consequently, as sections 50 and 57 are in Parts IV and V of the Act, they cannot apply where a request is made for such information; accordingly, neither the Commissioner nor the Tribunal has jurisdiction to entertain any application under those sections in relation to such a request.

76.  In my view, this argument is not merely inconvenient in its effect, as Davis J said at first instance ([2007] EWHC 905 (Admin); [2007] 1 WLR 2583, para 38) when accepting it. On closer analysis, it also suffers from a number of other, more fundamental, problems.

77.  First, the argument effectively enables a hybrid authority, to which a request is made, to decide whether the information is excluded, and, therefore, whether the Commissioner has jurisdiction. That would mean that any hybrid authority had the power to determine whether or not a request made purportedly pursuant to the Act is for information which is or is not within the Act. In practice, therefore, a hybrid authority would be able to be the judge in its own cause, subject only to the risk of its decision being judicially reviewed.

78.  However, the Act does not provide that it is the authority itself which has the right to decide whether a request made of it is for excluded information. Nor does section 7(1) state that information is outside the ambit of the Act if the hybrid authority claims that it is excluded information: it states that information is outside the ambit of the Act if it is actually excluded information. Further, as a matter of principle, it seems wrong (and unlikely to have been intended by the legislature) that a hybrid authority should be the statutory judge in its own cause, unless that were clearly spelt out in the Act.

79.  It is noteworthy that the Act does provide for self-certification by a public authority, but only in relatively rare circumstances, and then in clear terms, and normally subject to heavy safeguards. Thus, by section 23, a Minister’s certificate that information should not be released on grounds of national security is “conclusive", but even that is subject to an appeal direct to the Tribunal under section 60. Further, section 53 enables government departments (and other public authorities designated by the Secretary of State) to provide a certificate overriding an adverse decision by the Commissioner, but such a certificate has to be put before Parliament. Further, section 53 only applies after the Commissioner has made a decision under section 50. These sections sit somewhat unhappily with the BBC’s case that self-certification is also permitted in relation to what a hybrid authority claims is excluded information, but without any express provision to that effect, and without any safeguards or statutory rights of appeal.

80.  Ms Carss-Frisk QC, for the BBC, sought to avoid these difficulties, or at least to finesse them, by contending that the Commissioner would have the power to investigate whether information claimed by hybrid authority to be excluded was in fact excluded, in order to decide whether he had jurisdiction to entertain a section 50 application. However, on analysis, that contention seems to me to be inconsistent with, and indeed effectively to undermine, the BBC’s case.

 
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