Sugar & Anor v BBC

Under the Freedom of Information Act 2000, service of a decision notice under section 50(3)(b) is a condition precedent to an appeal to the Information Tribunal under section 57(1). A communication stating that the Commissioner has made no decision because the body is not a public authority in relation to the information is not a decision notice. The Tribunal therefore has no jurisdiction in its absence, and judicial review remains available. The BBC’s Schedule 1 entry means that it is a public authority only for information held for non-journalistic, artistic or literary purposes. Section 7(1) does not convert the BBC into a general public authority whose obligations are merely subject to an exemption. Anomaly and Convention considerations cannot justify rewriting the statutory scheme.

Mr Sugar requested the BBC’s Balen Report under the Freedom of Information Act 2000. The Information Commissioner concluded that the report was held for journalistic purposes and that the BBC was not a public authority in relation to it. He did not issue a decision notice.

The Information Tribunal nevertheless ruled that it had jurisdiction and considered the substantive journalism issue. Davis J, in a judgment reported at [2007] 1 WLR 2583, held that the Tribunal lacked jurisdiction because no decision notice had been served. He also rejected Mr Sugar’s judicial review challenge. The appeal principally concerned whether the Commissioner’s letter created a decision notice and whether the Tribunal could hear the appeal.

Buxton LJ gave the leading judgment. Lloyd LJ and Sir Paul Kennedy agreed. The appeal was dismissed.

1. Appeal under section 59. The statutory right to appeal from the Information Tribunal on a point of law extends to a decision determining jurisdiction. The fact that the decision arose at a preliminary stage did not make it an interlocutory decision in the relevant sense.
2. Decision notice as a condition precedent. Section 57(1) permits an appeal only where a decision notice has been served, and the appeal is against that notice. Under section 50, the Commissioner must decide whether a request made to a public authority has been dealt with in accordance with Part I. If he concludes that the body is not a public authority in relation to the information, he does not make that decision and cannot issue a decision notice under section 50(3)(b). The complainant’s remedy for an alleged error is judicial review.
3. Status of the BBC. The Schedule 1 entry plainly limits the BBC’s status as a public authority to information not held for journalism, art or literature. Section 7(1) confirms that Parts I to V do not apply to other information; it does not make the BBC a public authority in all respects. The statutory anomaly produced by that scheme could not justify adopting the strained construction advanced by the appellants.
4. The Commissioner’s letter. The letter stated that the BBC was not a public authority and was not obliged to release the report. It therefore stated that no decision was being made under section 50, rather than serving a decision notice. The court could not treat it retrospectively as such a notice merely because no prejudice had been caused. R v SSHD ex parte Jeyeanthan [2000] 1 WLR 354 concerned procedural lapses where jurisdiction was not in dispute and was distinguishable.
5. Article 6 and anomaly. The request did not concern a civil right or personal interest sufficient to engage Article 6. In any event, judicial review provided an adequate tribunal for the statutory-construction issue. Convention values and the perceived anomaly could not justify rewriting section 57(1).

• Court of Appeal (Civil Division) dismissed the jurisdiction appeal. The separate judicial-review appeal had been withdrawn.
• High Court, Queen’s Bench Division Davis J held that the Information Tribunal lacked jurisdiction because no decision notice had been served, and rejected the judicial-review challenge. The judgment is reported at [2007] 1 WLR 2583.
• Information Tribunal ruled that it had jurisdiction and then determined the substantive journalism issue in favour of the BBC.