British Broadcasting Corporation v Sugar

Under the Freedom of Information Act 2000, the BBC is a public authority only in respect of information held for purposes other than journalism, art or literature. Where the Information Commissioner decides that the derogation applies, no decision notice is served under section 50 and there is no appeal to the Information Tribunal under section 57. The appropriate remedy is judicial review.

Whether information is held for journalistic purposes is a contextual assessment involving judgment and fact and degree. Journalism includes collecting, analysing, editing and communicating news, together with directly related assessment, quality-control and management processes. A report reviewing past broadcasts may therefore fall within the derogation. The court reviews the Commissioner’s conclusion on ordinary public-law grounds and does not substitute its own view merely because another conclusion is possible.

Steven Sugar requested the BBC’s internal Balen Report concerning the BBC’s coverage of Middle East affairs. The Information Commissioner decided that the report was held for the purposes of journalism and therefore fell outside the BBC’s designation under Part VI of Schedule 1 to the Freedom of Information Act 2000.

Mr Sugar appealed to the Information Tribunal. The Tribunal held that it had jurisdiction and concluded on the evidence that, when the request was made, the report was held for purposes other than journalism. The BBC appealed under section 59 and brought concurrent judicial-review proceedings. Mr Sugar also sought judicial review of the Commissioner’s original decision. The central issues were whether the Tribunal had jurisdiction and whether the Commissioner had lawfully applied the journalism derogation.

1. Jurisdiction. The BBC was a public authority under the Freedom of Information Act 2000 only in respect of information held for purposes other than journalism, art or literature. Section 7(1), read with section 3(1) and Part VI of Schedule 1, limited the application of Parts I to V according to the information held; it did not make the BBC a public authority for all information subject to an exemption.
2. Section 50 requires a request to have been made to a public authority within the statutory scheme. An appeal under section 57 requires a decision notice under section 50(3)(b). The Commissioner’s letters did not constitute such a notice. Since he had decided that the derogation applied, no appealable decision notice existed and the Tribunal had no jurisdiction. The remedy was judicial review.
3. Article 6 of the Convention did not alter that conclusion. Mr Sugar had no personal civil right in the report and could challenge the Commissioner’s jurisdictional decision by judicial review.
4. Journalism derogation. The expression “held for purposes other than those of journalism” must be considered compendiously. Journalism extends to journalistic activity as well as journalistic product, including collecting, analysing, editing and communicating news. Directly related assessment, quality control and management processes may also be journalistic purposes. A review of past broadcasts may be created and held for the future purpose of improving journalistic quality, reliability and objectivity.
5. The issue was not a hard-edged jurisdictional fact on which the court had to reach its own conclusion. It was an assessment entrusted to the Commissioner, involving context, fact and degree, and reviewable on public-law grounds. The approach in R v Monopolies and Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23 applied.
6. The Commissioner’s findings that the report had a direct relationship with programme content, a continuing creative journalistic purpose, a dominant journalistic purpose and journalists as the primary constituency to benefit were rationally open to him. The Commissioner was not required to treat mixed purposes as automatically outside the derogation. No error of law, irrationality, procedural unfairness or breach of natural justice was established.
7. The Commissioner’s later explanations were not fresh reviewable decisions. The proposed mistake-of-fact ground was not based on an uncontentious and objectively verifiable fact. Permission to apply for judicial review was granted, the claim was dismissed, and proposed amendments were allowed only in part. Permission to appeal was refused.

• Information Tribunal: held that it had jurisdiction and decided that the Balen Report was held for purposes other than journalism, art or literature.
• High Court (Administrative Court): held that the Tribunal had no jurisdiction because no appealable decision notice had been served. The separate judicial-review claim against the Commissioner’s decision was dismissed.