The cases of The British Broadcasting Corporation v Sugar and Another [2007] and R (on the application of) The British Broadcasting Corporation v The Information Tribunal and Others [2007] 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.
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