Reference:  UKHL 9
Court: House of Lords
Judge: Lords Phillips of Worth Matravers, Hoffmann, Hope of Craighead and Neuberger of Abbotsbury and Baroness Hale of Richmond
Date of judgment: 11 Feb 2009
Summary: Freedom of Information Act 2000 - jurisdiction - information held for the purposes of journalism, art or literature - public body - hybrid authority - decision notice
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Instructing Solicitors: Forsters LLP for the Appellant; BBC Litigation Department for the Respondents
In 2005 the Applicant (S) made a FOI request for a BBC report concerning the BBC’s coverage of the Middle East. The BBC witheld the report on the grounds that it was held for the purposes of journalism. The Information Commissioner upheld the BBC’s view and held that he had no jurisdiction to issue a decision notice because the BBC was not a public body (in relation to that information). S successfully appealed to the Information Tribunal. The BBC successfully applied for judicial review of the IT’s decision, and the Court of Appeal upheld the decision that the IT had acted without jurisdiction. S appealed to the House of Lords.
(1) Was the Information Commissioner correct to conclude that he had no jurisdiction on the basis that the BBC held the report for the purposes of journalism?
(2) Was the Information Commissioner’s decision susceptible to an appeal to the tribunal?
Allowing the appeal (Lord Hoffman and Baroness Hale dissenting):
S’s FOI request had been made to the BBC as a public authority within the terms of s.1 FOIA. “Public authority” as used in the Act, embraced hybrid authorities for all purposes. If the requested information was not part of the authority’s public information it was entitled to state that the information did not form part of the information held. S had been entitled to complain to the Commissioner and the Commissioner had jurisdiction to deal with that complaint.
(2) S was entitled to challenge the IC’s decision that the report was held for the purposes of journalism: a letter setting out a decision could amount to a “decision notice” for the purposes of s50 FOIA. The IT therefore had jurisdiction to reach its decision. The only appeal from the IT’s decision on the journalism issue would be to the High Court on a point of law.
The Lords have made clear that the Information Tribunal has the power to review decisions by the Information Commissioner that a matter is outside of his jurisdiction.
The court remitted the BBC’s appeal to the Administrative Court for determination.