BBC v Sugar & The Information Commissioner (CA)
Reference:  EWCA Civ 191
Court: Court of Appeal
Judge: Buxton and Lloyd LJJ and Sir Paul Kennedy
Date of judgment: 25 Jan 2008
Summary: Freedom of information - Information Tribunal - Jurisdiction - Appeal from decision of Information Commissioner - 'Decision notice' - BBC as public authority - Information held for purposes of journalism - ss.50, 57, Freedom of Information Act 2000
Instructing Solicitors: Forsters LLP for the Appellant; BBC Litigation Department for the Respondent
The BBC commissioned an internal report on its coverage of Middle Eastern matters. The report was never published. S wished to see it and requested it under the Freedom of Information Act 2000. The BBC refused, stating that that the report impacted on its reporting of world events and that the FOIA did not apply. S complained to the Information Commissioner (‘C’), who ruled that the report was held for the purposes of journalism and that in the circumstances the BBC was not a public authority under the FOIA in respect of S’s request and was not obliged to release the report. S appealed that decision to the Information Tribunal. The BBC contended that the Tribunal did not have jurisdiction, but the Tribunal held that it did, and that the report was not held for the purposes of journalism and the BBC had to disclose it. Davis J found that the Tribunal did not have jurisdiction and rejected S’s judicial review application. S, supported by C, appealed against the decision on jurisdiction.
Whether the Information Tribunal had jurisdiction to hear an appeal against the Information Commissioner’s decision that the report was held for the purposes of journalism and that the BBC was not a public authority for the purposes of the FOIA in respect of S’s request.
Dismissing the appeal:
S.57(1), FOIA, provides that when a ‘decision notice’ has been served the complainant or the public authority may appeal to the Information Tribunal against that notice; thus the serving of a decision notice is a condition precedent to the Information Tribunal doing anything, and it is the decision notice and nothing else that is appealed against. Under s.50(3)(b), a ‘decision notice’ is a decision as to whether a request to a public authority has been dealt with in accordance with the requirements of Part I of the FOIA. But where, as here, the IC decides that the request was not made to a public authority, he does not and cannot make a decision as to whether a “public authority” has dealt with the request in accordance with Part I. Accordingly the Tribunal had no jurisdiction to hear an appeal from the IC’s decision.
The right under the FOIA to appeal a decision of the Information Commissioner to the Information Tribunal is limited. Where that appeal does not lie the only remedy available to an aggrieved complainant will be judicial review.