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

A body named in Schedule 1 to the Freedom of Information Act 2000 remains a public authority even where its listing is limited by reference to specified information. The limitation governs the information to which Parts I to V apply. It does not remove the Information Commissioner’s jurisdiction whenever the authority asserts that requested information falls outside the listed description.

A requester may ask the Commissioner to determine whether that assertion is correct. A letter communicating the Commissioner’s final determination can constitute a decision notice under section 50 even if it lacks that title or incorrectly states that judicial review is the available remedy. Such a notice carries a statutory right of appeal to the Information Tribunal.

The appellant requested the BBC’s internal report concerning its coverage of the Middle East. The BBC refused disclosure on the ground that the report was held for the purposes of journalism. Its listing in Schedule 1 to the Freedom of Information Act 2000 extended only to information held for purposes other than journalism, art or literature.

The Information Commissioner accepted the BBC’s classification. The Information Tribunal held that it had jurisdiction and reversed that determination. Davis J allowed the BBC’s judicial review claim: [2007] EWHC 905 (Admin); [2007] 1 WLR 2583. The Court of Appeal upheld his decision: [2008] EWCA Civ 191; [2008] 1 WLR 2289.

The House considered whether the Commissioner had jurisdiction to determine whether the requested information fell within the BBC’s qualified listing and whether his letter was a decision notice appealable to the Tribunal.

1. Appeal allowed by a majority of three to two. Lord Phillips, Lord Hope and Lord Neuberger held that the Commissioner had jurisdiction to determine whether the report was held for journalistic purposes. Lord Hoffmann and Baroness Hale dissented.

2. Per Lord Hope, the BBC’s express inclusion by name in Schedule 1 made it a public authority for the purposes of the Freedom of Information Act 2000. Section 7(1) limited the information to which Parts I to V applied. It did not divide the BBC into a public-authority persona and a separate private persona. A genuine dispute about whether an unnamed body satisfies a generic Schedule description may have to be decided by a court, but the BBC’s identity as a listed authority was not genuinely disputable.

3. Per Lord Phillips, a request expressly made under section 1 to a body with a qualified listing is made to that body as a public authority. Section 50 therefore permits the requester to complain that the authority has wrongly classified the information as falling outside its listed description. The Commissioner must determine whether Part I imposed any requirement in respect of that information.

4. Per Lord Neuberger, the contrary construction would make the authority the statutory judge of whether its own information was excluded, subject only to judicial review. It would also divide connected objections between the courts, the Commissioner and the Tribunal. Until exclusion is accepted by the requester or determined through the statutory machinery, section 7(1) does not prevent the Commissioner and Tribunal from resolving the dispute.

5. Per Lord Phillips, section 50 prescribes no particular form for a decision notice. The Commissioner’s letter stated his final decision that the report was held for journalistic purposes and that disclosure was not required. It was therefore a decision notice in substance, notwithstanding its erroneous reference to judicial review. The Tribunal consequently had jurisdiction under section 57.

6. Lord Hoffmann and Baroness Hale would have held that the qualified listing made the BBC a public authority only in respect of non-journalistic information. On their construction, whether the requested information engaged that status was anterior to the Commissioner’s jurisdiction and was for a court to determine.

7. The Tribunal’s decision was restored. The BBC’s outstanding challenge to the Tribunal’s decision on the journalism issue was remitted to the Administrative Court as a statutory appeal on a point of law.

1. House of Lords: By a majority of three to two, allowed the appeal from [2008] EWCA Civ 191, restored the Information Tribunal’s decision and remitted the BBC’s outstanding statutory appeal to the Administrative Court.

2. Court of Appeal: Dismissed the appellant’s appeal and upheld the conclusion that neither the Commissioner nor the Tribunal had jurisdiction: [2008] EWCA Civ 191; [2008] 1 WLR 2289.

3. Administrative Court: Davis J allowed the BBC’s judicial review claim, quashed the Tribunal’s decision for want of jurisdiction and rejected the appellant’s cross-application: [2007] EWHC 905 (Admin); [2007] 1 WLR 2583.

4. Information Tribunal: Held that the Commissioner’s determination was a decision under section 50 and that the Tribunal had jurisdiction. It also reversed the Commissioner’s conclusion that the report was held for journalistic purposes.