In Sugar v BBC [2009] UKHL 9, the House of Lords has delivered an important judgment on the application of FOIA to so called ‘hybrid authorities’. The case concerned a request which was made by Mr Sugar in January 2005 for disclosure of a report which was held by the BBC and which concerned the BBC’s coverage of the Middle East. The BBC refused to release the report on the grounds that: (a) it was only subject to a duty to disclose information under section 1 FOIA to the extent that it was a ‘public authority’ for the purposes of that section; (b) part IV of schedule 1 to FOIA provides that the BBC is a ‘public authority’ only ‘in respect of information held for purposes other than those of journalism art or literature’; (c) the report was held for the purposes of journalism and, hence, the section 1 duty was not triggered in respect of the report. The Commissioner agreed with the BBC’s analysis. He went on to conclude that, because the BBC could not be treated a ‘public authority’ for the purposes of Mr Sugar’s request, he had no powers under section 50 FOIA to issue a decision notice in respect of Mr Sugar’s complaint. On appeal by Mr Sugar to the Information Tribunal, the BBC and the Commissioner argued that the Tribunal had no jurisdiction to hear the appeal as no decision notice had been issued under section 50. The Information Tribunal allowed Mr Sugar’s appeal against the Commissioner’s decision. It held that the Commissioner’s decision was a decision notice under section 50(3); that the BBC was a public authority for the purposes of section 1 FOIA and that the report was not held for the purposes of journalism. The BBC sought a judicial review of the Tribunal’s decision. That claim was upheld at first instance and on appeal to the Court of Appeal. Mr Sugar appealed to the House of Lords.
In a majority judgment (Lord Hoffman and Lady Hale dissenting), the House of Lords held that the Tribunal’s decision was sound in law. Importantly, the House of Lords found that the Commissioner had erred in concluding that Mr Sugar had not made a request under section 1 FOIA merely because the nature of the requested information. It found that, when dealing with ‘hybrid authorities’ such as the BBC (i.e. authorities which are only public authorities under FOIA for certain purposes), it would be impractical for the Commissioner to decide whether he had jurisdiction to consider a complaint simply by referring to the nature of the requested information. The correct approach would be for the Commissioner to treat hybrid authorities as always being ‘public authorities’ for the purposes of section 1, irrespective of the nature of the requested information. On this approach, the Commissioner would have jurisdiction to decide a complaint brought by the applicant, albeit that he would have to have regard to the provisions of schedule 1 as and when he was deciding whether the authority erred in refusing to disclose the requested information. Notably, Lord Phillips commented on an obiter basis that, where information not falling within the scope of FOIA was requested by an applicant, a hybrid authority was lawfully entitled under FOIA to say to the applicant that it did not hold the requested information, even if in physical terms it did hold the requested information. Lord Phillips opined that this result was permitted by section 7 FOIA (para. 33).
In their dissenting judgments Lord Hoffmann and Lady Hale took a very different view of the matter. They concluded that schedule 1 FOIA defined the circumstances in which a body would be a ‘public authority’ for the purposes of section 1 and, in the case of the BBC, those circumstances did not include where the information was held for the purposes of journalism, art or literature; that the information requested by Mr Sugar was held for the purposes of journalism; that the BBC was accordingly not a ‘public authority’ under FOIA for the purposes of the request made by Mr Sugar; and, hence, that the Commissioner had been right to conclude that he had no jurisdiction in respect of Mr Sugar’s complaint. The Commissioner, who supported Mr Sugar’s case before the High Court and the Court of Appeal, was not a party to the appeal to the House Lords. 11KBW’s Ben Hooper represented the Commissioner in the High Court and the Court of Appeal.
The judgment: