Sugar Appellant V British Broadcasting Corporation And Another Respondents

The Freedom of Information Act 2000 (“the Act”) provides for a general right of access to information held by public authorities. That right is subject to exceptions. The Act makes provision for its enforcement by the Information Commissioner (“the Commissioner”) and for a right of appeal from a decision of the Commissioner to the Information Tribunal (“the Tribunal”). Schedule 1 to the Act lists the public authorities to which the Act applies. A small number of these are listed in respect only of certain specified information.twitter.com Mr Sugar challenged the BBCs response before the Commissioner. The Commissioner upheld the BBCs contention. Mr Sugar appealed to the Tribunal. The BBC and the Commissioner argued that the Tribunal had no jurisdiction.


The Tribunal held that it had jurisdiction and purported to exercise this by reversing the Commissioners decision on the journalism issue. The BBC then brought, simultaneously, an appeal under the provisions of the Act and a claim for judicial review. ] 1 WLR 2583. Davis J held that the Commissioner had determined that he had no jurisdiction. He had made no decision that was susceptible to an appeal to the Tribunal under the Act. The Tribunal had acted without jurisdiction and its decision could not stand. Schedule 1 is lengthy. Some public authorities are listed generically, others individually. Out of approximately 500 names in the list originally scheduled to the Act, nine were qualified by reference to the class of information held, of which one was the BBC.


In all but one, the qualification was introduced by the words “in respect of". The exception was: “The Competition Commission in relation to information held by it otherwise than as a tribunal". I shall refer to this class of public authorities as “hybrid authorities". The information held by them in their capacity as public authorities I shall describe as “public information". It has to date been accepted, and I think rightly accepted, that section 7(1) refers to the hybrid authorities. 9. Section 1 deals with the initial obligations of a public authority when a person makes a request to it for information.


Part I goes on to make very detailed provision for the response that a public authority has to give in relation to exempt information that it holds. 1(1), or. . . Commissioner, in such form as may be so specified, with such information relating to the application, to compliance with Part I or to conformity with the code of practice as is so specified. 57.—(1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. A public authority on which an information notice or an enforcement notice has been served by the Commissioner may appeal to the Tribunal against the notice.


Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based. Please provide me with a copy of the report by Mr Michael Balen regarding the BBCs news coverage of the Middle East, in particular the conflict between Israel and the Palestinians. I appreciate that the BBCs obligations under the Act do not apply to information ‘held for the purpose of journalism'. This restriction must be carefully applied.


It does mean that the public does not have a right of access to information obtained by the BBCs journalists for the purposes of their news reports. But it does not mean that anything to do with BBC journalism is not to be publicly available. In particular, information held for the purposes of developing policy in relation to the BBCs news function or the management of that function is not information held for the purposes of journalism. “The information you requested is not covered by the Freedom of Information Act 2000 (‘the Act). Information about BBC programmes, content and their production is not covered by the Act.


The impartiality of our journalism is an important part of that production. If you are not satisfied with this decision that the information you requested is not covered by the Act you can apply for an internal review of our decision. To apply for internal review please email foi@bbc.co.uk or write to BBC Freedom of Information, PO BOX 48339, London, W12 7XH, UK, quoting the reference number at the top of this correspondence. If having completed the BBCs internal review process, you remain dissatisfied with the Corporations decision on your information request, you can raise the issue with the Information Commissioner.


It is now the BBCs case that they made a mistake in referring Mr Sugar to the Commissioner because the Commissioner had no jurisdiction in this matter. 13. Mr Sugar replied immediately to the BBC asking them to review their decision. They did so and upheld their decision not to provide the information. On 18 March 2005 Mr Sugar wrote to the Commissioner, purporting to make a complaint under section 50 of the Act. “As I anticipated, the BBC is relying on the words in the Act which limit the BBCs disclosure obligations so that they do not apply to information ‘held for the purposes of journalism'.


I say that information held for the purposes of the review of the BBCs journalism is not per se information held for the purposes of journalism within the meaning of the Act. The BBC appears to deny this but has not provided any argument to the contrary. Instead the BBC seems to say that Mr Balens view of the BBCs impartiality should be kept to itself. I consider this is contrary to the intention of the Act. 14. The Commissioner wrote to Mr Sugar on 24 October informing him of his current view of his complaint, after considering the Balen Report, submissions from the BBC, Mr Sugars correspondence and extensive consultation with senior colleagues. BBC has correctly applied Part VI of Schedule 1 to the Act.


Consequently, and in the particular circumstances of this case, the BBC is not a public authority under the Act, and is therefore not under an obligation to release the contents of the Balen Report. In the circumstances of the above, I confirm that this file will be closed because this Office is unable to take your complaint further. I appreciate that this letter may be a disappointment to you but I hope that the contents of my previous letter has helped to explain why this Office is unable to progress with your complaint. 15. Mr Sugar did not at this stage apply for judicial review. Instead he wrote to the Tribunal on 30 December 2005, purporting to give a Notice of Appeal under section 57 of the Act.


This asserted that the Commissioner had reached an erroneous view on the journalism issue. “21. The Information Tribunal does not have jurisdiction to hear this appeal. 16. The Tribunal held a preliminary hearing on the issue of jurisdiction. The BBCs argument can be summarised as follows. Mr Sugars request for information had been made to the BBC as holder of the Balen Report. The Balen Report was held for the purposes of journalism. It followed that, in its capacity as holder of the Balen Report, the BBC was not a public authority. Mr Sugars request had not been made to a public authority.


The Act did not apply to it. The Commissioner had no jurisdiction under the Act to make a decision that could be appealed to the Tribunal. Nor had he done so. He had expressly found that the BBC was not a public authority. 17. The Tribunal published its decision on 29 August 2006. It held that the BBCs argument was fallacious. Whether or not the BBC held the Balen Report in its capacity as a public authority Mr Sugars request for information had been made to it as a public authority and was covered by section 1 of the Act. The Commissioner had had jurisdiction to decide whether the BBC had complied with its obligations under section1.


He had so decided, and his finding was, in effect, a decision notice under section 50(3). The Tribunal had jurisdiction to entertain Mr Sugars appeal against the Commissioners decision. 18. At the same time as it published its decision on jurisdiction the Tribunal published a decision on the journalism issue. This reversed the Commissioners decision, ruling that at the time of Mr Sugars request the BBC held the Balen Report for a purpose other than journalism. 19. By the time that this matter came before Davis J the Commissioner had had a change of heart - indeed this had occurred before the Tribunal published its decision on jurisdiction.


20. Davis J expressed the view that the result that he had reached had practical consequences that were unattractive. I share that view. Under the scheme of the Act an issue as to whether a public authority has complied with the requirements of Schedule 1 falls to be determined initially by the Commissioner, with an appeal to the Tribunal.youtube.com In a case such as this, that issue turns on whether the information held is public or excluded information. If the Commissioners jurisdiction turns on precisely the same question, how is he to set about resolving it if, as is likely to be the case, he lacks the necessary information? Section 51 is designed to enable him to require production of the information that he needs to perform his duties, but that section will not apply if the Commissioner has no jurisdiction. Quite apart from this practical problem, if the Commissioners decision goes to his jurisdiction, whether the decision is positive or negative, the appropriate forum for a challenge will be the administrative court in judicial review proceedings.


At the end of week fifteen, the release of testosterone peaks and floods the fetal body, during which males receive a larger dose than females. After week fifteen, the documentary jumps to weeks twenty-three, when the fetus puts on a significant amount of body fat. The large amount of body fat provides energy for muscles, specifically the heart muscle, of a fetus. Episode three, The Final Push, examines what happens to the fetus in the womb between week twenty-five and week forty. During week twenty-five, the largest bone of the body, the pelvic bone, forms. To discuss the process of making bones during development, the documentary introduces nine-year-old Janelly, who was born without the ability to make bones.


According to the documentary, a fetus starts with cartilage, and then cartilage is replaced with bones at week twenty-five. Bones are formed by specialized cells called osteoblasts. The osteoblasts surround the skeleton and replace the cartilage with a calcium-based mineral. The calcium-based mineral then produces a damaging chemical that prevents the bones from hardening. However, in the average fetus, the body will develop a response that activates a gene to create a protein, TNSLP. With that protein, the body neutralizes the damaging chemical, and bone formation can continue. At eighteen months old, Janelly was unable to make bones. Therefore, her parents enrolled her in a clinical trial in Australia.


Researches in the trial were studying a new drug, which they gave to Janelly to help her replace the cartilage in her body with bones. Within six months, the drug began to replace the missing protein in her body and she began growing bones by the age of twenty-four months. After the introduction of Janelly, episode three continues with the changes the fetus undergoes at week twenty-seven and week twenty-eight. In the middle of The Final Push, the documentary shows a fetus experiencing increased brain activity and development of senses. During week twenty-seven, the documentary discusses that most brain growth comes from fatty sheaths, which facilitate the transmission of impulses along nerves.


The fatty sheaths wrap around the brain cells and insulate the cells to send signals around the brain. By week twenty-eight, sounds from the outside world initiate the use of hair cells found in the ears by sending signals to the brain, known as sound. According to the documentary, the first sense to develop is hearing, while the other senses develop later.twitter.com In addition, by the end of week twenty-eight, the fetus is starting to be able to see. As the ability to see is heightened by the end of week twenty-eight, Mosley travels to Pingelap Atoll, an island in the South Pacific Ocean. As Mosley describes, Pingelap Atoll is known as Color Blind Island because more than ten percent of the population is color blind.