Sugar v British Broadcasting Corporation and another

The House of Lords held that, when a person makes a request under section 1 of the Freedom of Information Act 2000 to a body that is listed in Schedule 1 only in relation to certain information, that body is nevertheless a "public authority" for the purposes of the Act so that the section 1 request is a request to a public authority. The Information Commissioner has jurisdiction under section 50 to decide whether the public authority has dealt with the request in accordance with Part I, including determining whether the information is in fact "held for the purposes of journalism, art or literature" (the journalism issue). The Commissioner's written letter in this case amounted to a decision notice and was therefore appealable to the Information Tribunal under section 57. Applying those principles, the House of Lords allowed the appeal and restored the Tribunal's decision on the journalism issue.

Background and facts:

• The appellant requested a copy of the Balen Report, a review commissioned by the BBC concerning its coverage of the Middle East.
• The BBC refused, relying on its Schedule 1 entry that excludes information "held for purposes of journalism, art or literature" from the Act.
• The appellant complained to the Information Commissioner under section 50, who concluded the report was held for journalistic purposes and wrote to the appellant; the appellant appealed to the Information Tribunal which held it had jurisdiction and reversed the Commissioner on the journalism issue.
• The BBC obtained judicial review; Davis J held the Tribunal had acted without jurisdiction and the Court of Appeal ([2008] EWCA Civ 191) upheld that decision. The case came to the House of Lords.

Nature of the proceedings and issues:

• (i) The main nature of the proceedings in this court was an appeal concerning the jurisdictional reach of the Information Commissioner and whether his communications constituted a decision notice appealable to the Tribunal.
• (ii) The court framed two issues: the narrow question whether the Commissioner had made a decision susceptible to appeal to the Tribunal (the decision‑notice issue), and the broader question whether the Commissioner has jurisdiction under section 50 to determine whether information held by a Schedule 1 listed body is excluded from the Act because it is held for journalistic purposes (the jurisdiction/journalism issue).

Reasoning and conclusion:

• The majority concluded that a body listed in Schedule 1 even only in relation to specified information is to be treated as a "public authority" for the purposes of a request made under section 1, and that section 1 applies whenever a request is made to such a listed authority.
• The majority held that where a hybrid authority contends the information is excluded, the applicant may nevertheless invoke the Commissioner's functions under section 50; the Commissioner can determine whether Part I applies to the information and his communicated conclusion may amount to a decision notice appealable under section 57.
• The Commissioner's letter in this case did amount to a decision notice and so gave rise to an appeal to the Tribunal; consequently the Tribunal had jurisdiction and its decision on the journalism issue was restored. The outstanding BBC appeal was remitted to the Administrative Court for determination on the correct test of law.
• The minority concluded that where Schedule 1 limits an authority's listing to particular information, questions whether information is within that description are antecedent jurisdictional questions for the court, not for the Commissioner, and so the Tribunal lacked jurisdiction. They emphasised that Parliament had chosen the Schedule 1 technique rather than treating the information as an exemption and that the Commissioner cannot determine his own jurisdiction.

Procedural posture: Appeal from the Court of Appeal after earlier judicial review in the High Court (Administrative Court).

The appeal was allowed. The House of Lords (majority) held that a body listed in Schedule 1 only in relation to specified information remains a "public authority" for the purposes of a section 1 request; the Information Commissioner has jurisdiction under section 50 to determine whether the requested information is held for journalistic purposes and the Commissioner's letter in this case amounted to a decision notice which was appealable to the Information Tribunal. Accordingly the Tribunal had jurisdiction and its decision on the journalism issue was restored; the outstanding BBC appeal was remitted to the Administrative Court.

The Information Commissioner issued a decision letter (24 October / 2 December 2005). The Information Tribunal heard an appeal and decided it had jurisdiction and reversed the Commissioner (29 August 2006). The BBC obtained judicial review; Davis J held the Tribunal acted without jurisdiction, [2007] EWHC 905 (Admin); [2007] 1 WLR 2583. The Court of Appeal dismissed the appellant's appeal, [2008] EWCA Civ 191; [2008] 1 WLR 2289. The appellant appealed to the House of Lords, which allowed the appeal, [2009] UKHL 9.