The cases of The British Broadcasting Corporation v Sugar and Another  and R (on the application of) The British Broadcasting Corporation v The Information Tribunal and Others  concerned the Freedom of Information Act 2000 – a number of pieces of legislation should be mentioned to assist in the interpretation of these cases.
The appellant in the case, the British Broadcasting Corporation (“BBC”), asked B to provide advice on the coverage by the BBC of Middle Eastern matters. During 2004, B, who was an experienced journalist, produced an internal written report on the subject. The report was placed for consideration by the journalism board of the BBC. Then, in 2005 a panel was appointed to provide an external independent review of BBC reporting of Middle East affairs. This second report was never published.
The respondent, S, wished to see the second report. He was of the opinion that he was entitled to see it under the provisions of the Freedom of Information Act 2000 (the “2000 Act”). He therefore made a written request to the BBC, the response to which was that the report directly impacted on the BBC’s reporting of crucial world events and so the 2000 Act did not apply to it. S was dissatisfied with that answer and so subsequently complained to the Information Commissioner.
The commissioner corresponded fairly extensively with S and, separately, with the BBC. In a detailed letter, the commissioner set out his provisional view that the report was held for the purposes of journalism, art or literature, and that in such circumstances the BBC was not deemed a public authority under the 2000 Act in respect of S’s request, and was therefore not obliged to release the contents of the report.
S did not wish to submit any further comments to the commissioner, who confirmed his final decision that the report was non-disclosable, and so informed S of his right to seek a judicial review of the decision. S appealed to the Information Tribunal on the grounds of the provisions in s.50 of the 2000 Act. The position of the commissioner and the BBC at the time was as follows:
§ That S had no right of appeal under s.50;
§ The commissioner had not served a decision notice which could be appealed against; and
§ That the tribunal had no jurisdiction to entertain such an appeal.
The tribunal was of the opinion that it did indeed have jurisdiction to hear the appeal. The commissioner discontinued the dispute as regards jurisdiction. The tribunal ruled that it did have jurisdiction to hear S’s appeal and so proceeded to hear it. It held that at the time of S’s request for a copy of the report, the report was held for purposes other than those of journalism, art or literature.
Subsequently, the BBC appealed on the jurisdiction decision and the journalism decision and, to meet any point that a lack of jurisdiction was asserted, the BBC sought to challenge the decisions of the tribunal by concurrent judicial review proceedings.
S, in due course, issued his own judicial review proceedings challenging the original decision of the commissioner. It was submitted that the tribunal had no jurisdiction to entertain the purported appeal and that S’s remedy had laid in seeking judicial review of the commissioner’s original decision. In addition to this, it was submitted that despite the initial impression one otherwise could get from s.3(1) and Schedule 1 of the 2000 Act, s.7(1) showed that it was concerned with the application of Parts I to V to information, rather than purporting to define the circumstances in which a body was or was not to be treated as a ‘public authority’.
§ Section 3 of the Freedom of Information Act 2000 provides, so far as is material:
(1) In this Act “public authority” means:
(a) subject to section 4(4), any body which, any other person who, or the holder of any office which:
(i) is listed in Schedule 1, or
(ii) is designated by order under section 5, or
(b) a publicly-owned company as defined by section 6.
(2) For the purposes of this Act, information is held by a public authority if:
(a) it is held by the authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority.
§ Section 7 of the Freedom of Information Act 2000 provides, so far as is material:
(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.
(2) An order under section 4(1) may, in adding an entry to Schedule 1, list the public authority only in relation to information of a specified description.
§ Section 50 of the Freedom of Information Act 2000 provides, so far as is material:
(1) Any person (“the Complainant”) may apply to the Commissioner for 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.
(2) On receiving an application under this section, the Commissioner shall make a decision unless it appears to him:
(a) that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,
(b) that there has been undue delay in making the application,
(c) that the application is frivolous or vexatious, or
(d) that the application has been withdrawn or abandoned.
(3) Where the Commissioner has received an application under this section, he shall either:
(a) notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or
(b) serve notice of his decision (“Decision Notice”) on the complainant and the public authority.
§ Section 57 of the Freedom of Information Act 2000 provides, so far as is material:
(1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.
(2) A public authority on which an information notice or an enforcement notice has been served by the Commissioner may appeal to the Tribunal against the notice.
(3) In relation to a decision notice or enforcement notice which relates:
(a) to information to which section 66 applies, and
(b) to a matter which by virtue of subsection (3) or (4) of that section falls to be determined by the responsible authority instead of the appropriate records authority, subsections (1) and (2) shall have effect as if the reference to the public authority were a reference to the public authority or the responsible authority.
In Schedule 1 of the Freedom of Information Act 2000 a list of public bodies can be found. Most of those listed in Part VI of Schedule 1 are designated by name, however a few are not, and one such body is the BBC. The BBC’s entry in Part VI of Schedule 1 reads:
‘The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature’.
The appeal was allowed for the following reasons:
§ With regard to the requirements of Parts I to V of the 2000 Act, the BBC was deemed a public authority only in respect of information that it held otherwise than for purposes of journalism, art or literature. The applicable sections of the 2000 Act, in particular s.3(1) and s.7(1), taken with Schedule 1 were different. Those sections specify which bodies have to be treated as public authorities in respect of certain types of information. The sections do not state that the BBC was a public authority for all purposes under the 2000 Act in relation to all information held by them.
§ The structure of the 2000 Act is such as to preclude certain decisions of the commissioner from appeal to the tribunal. It could be discerned from the language and structure of the 2000 Act that any intent to appeal lay with the tribunal where it had been decided by the commissioner whether or not the requirements of Part I had been complied with by a public authority and where a decision notice had been served. If the commissioner had decided that the circumstances under s.7(1) to the 2000 Act subsisted, then there would be no decision notice under s.50(3)(b) which the commissioner could serve. As a consequence of this there could be nothing which could be appealed to the tribunal. The remedy was by way of proceedings for judicial review. By looking at the words of s.3, s.7 and Schedule 1 of the 2000 Act, the tribunal had no jurisdiction to entertain the appeal.
§ Whether a piece of information had been or had not been ‘held for purposes other than journalism’ ultimately involved a matter of judgment on the part of the commissioner by reference to the circumstances of each particular case. The re-affirmation of his decision had not been challengeable by way of judicial review. It was held that journalism extended to activity as well as product, and it extended to the process of collecting, analysing, editing and communicating news. The decision of the commissioner would have had the effect of establishing whether or not there had been jurisdiction to determine substantively on S’s complaint and to therefore serve a decision notice.
In this case, it was held that the final decisions of the commissioner had not been challengeable by way of judicial review. The decision of the commissioner had been lawful, rational, and properly open to him. The decisions had simply been the commissioner restating and justifying, in the context of the appeal to the tribunal, the position that the he had earlier adopted in his decision letter. As a result, S’s claim for judicial review failed and was subsequently dismissed.