“the principle stated by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government[1960] AC 260 , 286, that a citizen's ’recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words’" (paragraph 86). 42. From these authorities, Mr Hooper submitted that there is a presumption that the tribunal will decide public law issues necessary to vindicate a complainant’s right to receive information under FOIA. The presumption operated in the present case, it was submitted, because there was no provision in FOIA that clearly prevented the Commissioner and the tribunal from determining a public law challenge that needed to be resolved to decide a matter arising in the context of a FOIA appeal. 43. In order to establish the presumption he relies upon, however, Mr Hooper needs to do more than show that there is a presumption that a tribunal will decide certain public law issues. Under the relevant provisions of FOIA the tribunal’s role arises only on an appeal from the Commissioner, and is only to do one or both of two things. The first is to decide whether the notice against which the appeal is brought is or is not in accordance with the law. The second is, if and to the extent that the notice involved an exercise of discretion by the Commissioner, to decide whether or not the Commissioner ought to have exercised that discretion differently. Thus the tribunal’s functions are limited by reference to the functions of the Commissioner. The Commissioner is not a tribunal. On the contrary, the Commissioner’s functions can broadly be described as those commonly associated with a regulator. It is only if there is an appeal that the tribunal becomes involved. 44. The authorities do not suggest that there is a presumption that a regulator will decide public law issues as to the reasonableness of a decision taken by a public authority as to whether or not to exercise its powers in a particular way. Nor did Mr Hooper argue for a presumption in those terms. His argument in support of a presumption as to what the Commissioner could do worked by reference to a presumption as to what the tribunal could do. Without intending any disrespect to the tribunal (which was not focusing on this particular aspect) or to Mr Hooper, this was to put the cart before the horse. Only if the Commissioner was empowered to decide a relevant question could any jurisdiction arise in the tribunal to pronounce upon that question. 45. Ms Carss-Frisk suggested that we should not follow the approach of Sales J in Oxfam v Revenue and Customs Commissioners. Among other things she noted that Sales J. conceded that he had not heard detailed argument on the point and also acknowledged that he was departing from “a widely held view that the Tribunal’s jurisdiction is more limited” (paragraph 80). We prefer to put those points on one side at this stage, for we note that, far from relying upon a presumption, Sales J. relied upon “the natural and ordinary meaning of the words used” in the particular statutory provision concerned (see paragraph 78). In the same way, and on ordinary principles of statutory construction, we must examine the statutory provisions in question in context in order to determine whether the Commissioner and the tribunal have the role that Mr Hooper asserts. 46. In short, what Mr Morrissey is entitled to seek under FOIA is that the Commissioner should make a decision whether, in any specified respect, a request for information made by Mr Morrissey to a public authority has been dealt with in accordance with the requirements of Part I of FOIA. That will involve considering the extent of obligations imposed by FOIA and whether they have been complied with. Questions of law may arise as to what circumstances would permit a request under FOIA to be declined. Questions of fact may arise as to whether those circumstances existed. These questions focus on FOIA. True it is that an appeal from the Commissioner lies to the tribunal. That fact without more is not in our view sufficient to bring into play as regards the Commissioner’s role any presumption as to the extent to which public law issues will fall to be determined otherwise than by way of judicial review. Conclusion on procedural inclusivity presumption issue 47. We readily accept that the authorities cited by Mr Hooper show that there is no presumption that public law questions can only be raised by invoking the courts’ supervisory jurisdiction. For the purposes of argument we accept that there is a presumption that a tribunal may examine the validity of a public law decision when an individual seeks to establish private law rights which cannot be determined without such an examination. We part company with Mr Hooper, however, when he asserts that there is a presumption that the Commissioner can determine public law questions of reasonableness of the kind said to arise in the present case. There being no such presumption as regards the Commissioner’s jurisdiction, it must follow that there is no such presumption as regards the jurisdiction of the tribunal. Accordingly we turn to examine the position in the absence of such a presumption. The statutory construction issue 48. This issue concerns statutory construction of relevant provisions in the absence of any presumption one way or the other. The essential question for us to determine is whether, on their true construction, relevant statutory provisions empowered, and indeed required, the Information Commissioner to consider a public law question of reasonableness. For this purpose the Commissioner would, while acknowledging OFCOM’s decision not to disclose the information in carrying out its functions, consider whether to treat that decision as invalid, and hold that an exception to s 393(1) arose under s 393(2), because the only reasonable conclusion open to OFCOM was that disclosure should be made for the purpose of facilitating the carrying out of its functions. 49. To a considerable extent the arguments of the parties in supporting or opposing such a construction formed part of the arguments supporting and opposing the applicability of a procedural inclusivity presumption. Reliance was understandably placed by Mr Hooper on Boddington. The factual circumstances of Boddington are some way removed from those in the present case. The fundamental issue in Boddington was whether an individual who was charged with a criminal offence in the magistrates’ court could, in his defence before that court, challenge the lawfulness of the relevant bylaw. The House of Lords held that the rule of procedural exclusivity was no bar to such a challenge being raised before, and resolved by, the magistrates. The present case is very different. Mr Morrissey is not seeking to defend himself in a criminal prosecution. Nor is he within the principle identified by Viscount Simonds and amplified by Lord Steyn (paragraphs 41 and 39 above): he is not seeking to establish private law rights. 50. In its decision now under appeal the tribunal noted that it may be that the right of access to information that is granted to individuals by s 1(1) of FOIA is closer to a public law right than a private law right. We are unable to agree with the tribunal that this can only weaken any argument for procedural exclusivity: it seems to us that much must depend upon the nature of the task conferred on the tribunal by Parliament. 51. Ms Carss-Frisk also placed reliance on Jones v Powys Local Health Board[2008] EWHC 2562 (Admin) as establishing a “primary focus” or “dominant issue” test as governing the appropriate forum for a public law challenge. We are inclined to agree with Mr Hooper that Jones is not so much an extension or elaboration of the principle in Boddington but rather an application of that doctrine. With respect, however, insofar as Pinnock is concerned with the procedural inclusivity principle, the same argument may be made. Indeed, the Supreme Court in Pinnock expressly stated that they were “satisfied that we should apply the approach of the House of Lords in Wandsworth London Borough Council v Winder[1985] AC 461 ”
“In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that - (a) the information is exempt information by virtue of a provision conferring absolute exemption …”. 54. The language of s 2(2)(a) confirms that it must be for the public authority initially to determine whether the information requested is exempt “by virtue of” s 44. This in turn means that it is for the public authority to consider whether, in the light of the specific nature of the request made, and of the particular nature of the information sought to be disclosed, the applicability of some other statutory enactment results in the prohibition encapsulated in s 44. It will then be for the Commissioner to verify whether or not the public authority has dealt with the matter in accordance with the requirements of Part I of FOIA. 55. In the present case the other statutory enactment was the 2003 Act and in particular s 393. There is no dispute but that the statistical data gathered from the broadcasters about their employment and equal opportunity practices fell within the ambit of the general restriction on disclosure of information under s 393(1) and so, subject to s 393 (2), was exempt from disclosure by virtue of s 44(1)(a). Such information related to particular businesses, which were still in business and (for the most part) had not given their consent to its onward disclosure, and had been obtained under OFCOM’s statutory powers. 56. The question then for the public authority was whether that general restriction had been disapplied under s 393(2)(a). The only information which OFCOM had disclosed to the general public “for the purpose of facilitating the carrying out by OFCOM of any of their functions” was the aggregated summary statistical data . Plainly there could no longer be any general restriction on the disclosure of that information. As noted below, OFCOM argued that the ability to disclose only arose once there had in fact been a disclosure under s 393(2), and will not arise unless and until there has been such a disclosure. On this narrow point we see force in the contrary argument that s 393(1) is not intended to be read as applying where OFCOM has decided that it is right to disclose under s 393(2). However, a purposive approach to the construction of the relevant statutes in our view makes it unnecessary to decide that narrow point. On either view it is a prerequisite that OFCOM has at least decided that it is right to disclose under s 393(2). OFCOM goes further and says that disclosure must have in fact have been made before the prohibition in s 393(1) ceases to apply, but it is immaterial to our analysis whether this further step is indeed required. 57. The starting point for our analysis is that OFCOM is a body exercising powers within the supervisory jurisdiction of competent courts and a public authority for the purposes of FOIA. Individual commercial broadcasters are not public authorities and are not subject to FOIA. When those broadcasters provide information about their businesses, which OFCOM as a regulator requires from them under its detailed statutory powers, they may consent to onward disclosure of the information they supply. If they do not give consent for onward disclosure of that information, the purpose of s 393 is to reassure them that OFCOM can only lawfully disclose it if - as a prerequisite - OFCOM considers it right to do so for one of the purposes in s 393(2) . Conversely, those who seek disclosure of the information know that such information can only lawfully be disclosed if that prerequisite is met. Section 393 clearly identifies OFCOM as the body which decides on disclosure under s 393(2). It is not in dispute that OFCOM’s approach to s 393 will be subject to the supervisory jurisdiction of a court of competent jurisdiction (which in England and Wales will be the High Court). 58. The Commissioner’s statutory remit, in accordance with ss 18 and 50 of FOIA, is to decide whether a public authority has failed to deal with a request in accordance with the requirements of Part I of FOIA . It follows that the Commissioner is then charged with the responsibility of verifying whether the exercise required by FOIA has been correctly conducted by the public authority in question. The exercise which the Commissioner conducted was, insofar as it examined the reasonableness of OFCOM's failure to conclude that disclosure should be made under s 393(2), not in our view an exercise required by FOIA in the circumstances of the present case. As s 44 confers an absolute exemption , the role of the Commissioner, and thereafter that of the tribunal if appropriate, is limited to a verification process. There is, of course, a question of statutory construction as to what it is that FOIA contemplates will be involved in the verification process. Once that is resolved i t is not the role of the Commissioner to stray beyond that remit. 59. In the present case the exercise to be conducted by the Commissioner was a verification process which may not have been limited to seeing merely whether OFCOM had in fact made disclosure under s 393(2). As noted earlier, we can see good reason for thinking that the prohibition on disclosure in s 393(1) would not apply once OFCOM reached the conclusion that it would be right to make disclosure under s 393(2). 60. When the two statutes are read together, however, it would strain the statutory language considerably to say that the Commissioner's task under FOIA included deciding whether OFCOM acted unreasonably in failing to reach such a conclusion. In our view the strain is too great for the language to bear. The role of a court of supervisory jurisdiction examining the limits of reasonableness for the purpose of the 2003 Act is entirely different from the Commissioner's role under FOIA. The difference is so great that we cannot conceive that FOIA intended the Commissioner to consider whether an exercise of judgment by OFCOM under the 2003 Act was vitiated by unreasonableness. It follows that Mr Hooper's argument breaks down at its fifth stage because the exercise proposed is not an exercise envisaged by FOIA. The means that the fourth stage of the argument does not produce the result urged by Mr Hooper, for without the fifth stage the exception in s 393(2) must be examined by reference to the assessment of the position made by OFCOM. It follows that disclosure is in our view undoubtedly prohibited within the meaning of s 44 of FOIA by s 393(1) of the 2003 Act, for OFCOM has not reached a conclusion that disclosure would be appropriate for the purpose of facilitating the carrying out by it of any of its functions, and it is not the role of the Commissioner to tell OFCOM that under the 2003 Act it should have reached such a conclusion. 61. Thus on our analysis the statutory roles of the Commissioner and the tribunal in this regard are very different from the role of the tribunal under consideration in Oxfam . As noted earlier, under FOIA the tribunal's powers are restricted by reference to those of the Commissioner. The relevant functions of the Commissioner for present purposes are limited to a verification exercise. The Commissioner and the tribunal both have expert knowledge of matters concerned with freedom of information – among them, although not relevant in the present case, assessing the public interest in disclosure of particular information. Neither has expertise, however, in the functions entrusted to OFCOM by the 2003 Act. These are all significant distinctions from Oxfam , and accordingly nothing in our reasons should be taken as casting doubt on the decision reached in the circumstances of that case, or its potential relevance to other cases. 62. We have noted earlier that both the Commissioner and the tribunal made reference to the decision of the tribunal in Hoyte . The tribunal in that case examined whether or not the public authority (the Civil Aviation Authority) had acted unreasonably when it exercised its discretion not to disclose the disputed information. We take the view that Hoyte does not take matters any further forward. The point about jurisdiction to conduct a reasonableness review does not appear to have been identified as arising; at paragraph [53] onwards the tribunal examined the lawfulness of the public authority's exercise of discretion without any indication that its jurisdiction to do so was in dispute. Having had the benefit of full argument on the point, we take the view that as regards this particular issue the tribunal in Hoyte was wrong to embark upon a reasonableness review. In that case, as in this, the substantive outcome of the case is unaffected. 63. In short, the task of the Commissioner is to make a decision whether, in any specified respect, a request for information made by a complainant to a public authority has been dealt with in accordance with the requirements of Part I of FOIA. That may well require a view to be taken on the construction of a potentially relevant statutory bar on disclosure in other legislation. I n the circumstances of the present case it did not extend to asking the questions which might be asked on the subject of reasonableness by a court of supervisory jurisdiction examining a challenge to OFCOM's failure to exercise powers available to it under the 2003 Act . OFCOM’s additional submissions 64. As noted earlier, our conclusion on the appeal means that OFCOM does not need to rely on what we have described as its “additional submissions,” and we do not find it necessary to analyse these submissions in detail. The first such submission was that s 393(2) provides only that s 393(1) does not apply to any disclosure of information which “is made” for the purpose of facilitating OFCOM’s carrying out of any of its statutory functions (or indeed other purposes). The use of the expression “any disclosure of information which is made ” is said by Ms Carss-Frisk to be significant. The legislation does not provide that there is an exception to the prohibition in s 393(1) for any disclosure of information which should be made “for the purpose of facilitating the carrying out by OFCOM of any of their functions” but, as a matter of fact, is not made. We observe here that the phrase “any disclosure of information which is made” governs each separate head of s 393(2). It is by no means obvious that in context the distinction between a disclosure “which is made” and “which should be made” carries as much significance as OFCOM asserts. 65. Ms Carss-Frisk’s second submission was that s 393(2) provides only that disclosure of information is not prohibited by s 393(1) if the disclosure is made for the purposes set out in s 393(2)(a) to (f). Accordingly, it is said, even if such disclosure is made to one person for those purposes, then s 393(1) still prohibits a subsequent further disclosure to another person of the same information (without consent) in any other circumstances. We did not understand Mr Hooper to dissent from that proposition. 66. It necessarily follows, according to Ms Carss-Frisk, that such information remained exempt under s 44. Ms Carss-Frisk articulated a number of possible scenarios in which disclosure might be permitted and/or made to a limited number of or class of persons, e.g. for the purposes of criminal proceedings and investigations within s 393(2)(d), but where disclosure to the world as a whole would still remain prohibited under s 393(1). So, she submitted, once a disclosure had been made for a specific purpose under s 393(2), the information would nonetheless remain protected by s 393(1) and accordingly exempt under s 44. 67. Mr Hooper submitted that this argument involved a non sequitur – the proposition that a prior limited disclosure does not mean that information may be freely disclosed thereafter does not of itself mean that OFCOM can successfully rely on s 44 where the only reasonable course open to it was to disclose the information in question. We can see the force of that objection, but it does depend on the underlying premise that the reasonableness of OFCOM’s decision as to the carrying out of its functions is to be determined by the Commissioner. 68. In this context Ms Carss-Frisk placed reliance on the approach of the First-Tier Tribunal in PricewaterhouseCoopers v Information Commissioner and HMRC (EA/2009/0049). That case turned in part on the construction ofs 18(1) of the Commissioners of Revenue and Customs Act 2005 , which provides that HMRC officials must not disclose certain information, subject to exceptions where disclosure is permitted, as set out in s 18(2). The tribunal rejected the Information Commissioner’s submission that the general prohibition on disclosure under s 18(1) fell away whenever one of the situations specified in s 18(2) occurred. 69. However, we do not think that PricewaterhouseCoopers takes us any further forward. In our view the structure and formulation ofs 18 of the 2005 Act differs fundamentally from s 393 of the 2003 Act. Section 18(1) begins with a broadly-worded and absolute bar on disclosure by providing that “Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.”