Queen’s Bench Division
Published May 22, 2007
British Broadcasting Corporation v Sugar Regina (BBC) v Information Tribunal Regina (Sugar) v Information Commissioner
Before Mr Justice Davis
Judgment April 27, 2007

There could be no appeal to the Information Tribunal unless the Information Commissioner had decided whether the requirements of Part I of the Freedom of Information Act 2000 had been complied with by a public authority and where a decision notice had been served.

Mr Justice Davis so held in the Queen’s Bench Division when: (i) allowing the BBC’s appeal under section 59 of the Freedom of Information 2000 and granting its claim for judicial review against the decision of the Information Tribunal dated June 14, 2006, that it had jurisdiction to entertain Steven Sugar’s appeal against the decision of the Information Commissioner dated December 2, 2005 that an internal BBC report was not disclosable, and the decision of the tribunal that when Mr Sugar’s request for a copy of the report was made, it was held for purposes other than those of journalism, art or literature; and (ii) dismissing Mr Sugar’s claim for judicial review of the decision of the commissioner that the report was not disclosable.

Mr Steven Sugar in person; Mr Ben Hooper for the commissioner; Miss Monica Carss-Frisk QC and Miss Kate Gallafent for the BBC.

MR JUSTICE DAVIS said that due to concerns raised that the reporting by and news coverage of the BBC in relation to the Middle East and in particular the conflict between Israel and Palestinians was not evenhanded, Mr Malcolm Balen, an experienced journalist, was asked to advise on the coverage by the BBC of Middle Eastern matters.

He produced an internal written report which had never been published. Mr Sugar wished to see it. The BBC rejected his request to see it under the 2000 Act.

His complaint to the Information Commissioner was rejected. He then appealed to the Information Tribunal.

The initial question was whether the BBC was a public authority for the purposes of the request made by Mr Sugar. If it was not, then there would have been no request for information to a public authority and under section 50(1) of the 2000 Act, the Information Commissioner would not have received an application for the purposes of serving a decision notice.

The applicable sections of the 2000 Act, in particular sections 3(1) and 7(1) taken with Schedule 1, specified which bodies were to be treated as public authorities in respect of which types of information.

They did not state that the BBC was a public authority for all purposes under the 2000 Act in relation to all information held by it, with certain exceptions or exemptions then imposed.

It was only in respect of information held by the BBC otherwise than for the purposes of journalism, art or literature that it was a public authority subject to the requirements of Parts I to V of the 2000 Act.

One could discern, from the language and structure of the 2000 Act, an intent that an appeal lay to the tribunal only where the Information Commissioner had decided whether the requirements of Part I had been complied with by a public authority and where a decision notice had been served.

Section 7(1) specified circumstances where Parts I to IV of the 2000 Act did not apply. If the commissioner decided that those circumstances subsisted, there would be no decision notice under section 50(3)(b) which he could serve; and in consequence there could be nothing which could be appealed to the tribunal.

The tribunal had no jurisdiction to entertain any appeal and accordingly, the BBC’s further challenge to the correctness of the tribunal’s further decision that the Balen Report was held for purposes other than those of journalism, art or literature fell away.

Further, the decision of the commissioner was a lawful and rational one, properly open to him on the material before him. Mr Sugar’s claim for judicial review failed and was dismissed.

Solicitors: Mr Nick Tyler, Wilmslow; Ms Sarah Jones, Shepherd’s Bush.

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