British Broadcasting Corporation v The Information Commissioner

Information is outside the Freedom of Information Act where it is held to any significant extent for journalism, art or literature, even if it is also held for other purposes. The statutory phrase does not impose a predominant-purpose test. That test is a policy construct which cannot replace the words enacted by Parliament.

On mixed purposes, the question is whether the information is held to a significant extent for one of the specified purposes. A tribunal must identify the information actually held, in its relevant form and location, and address the evidence about the purposes for which it is held. Aggregated information held elsewhere for strategic or accounting purposes may be different information from operational information held for programme-making purposes.

The BBC appealed under section 59 of the Freedom of Information Act against the Information Tribunal’s decision of 7 November 2008 on a preliminary issue. Four consolidated requests concerned BBC salaries, programme and production costs, sports rights and budgets.

The Commissioner had decided that, apart from one part of the Gordon request, the information was held predominantly for purposes other than journalism, art or literature. The Tribunal upheld those decisions, applying what it called a cumulative predominant-purpose test. The central issues were the proper construction of Part VI of Schedule 1 and whether the Tribunal had properly evaluated the evidence concerning the form, location and operational use of the information.

1. Statutory construction. The appeal was allowed and the Tribunal’s decisions were quashed. The words in Part VI of Schedule 1 must be given their ordinary meaning. As explained by Lord Reid in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] 591 and Lord Nicholls in R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2AC 349, the court must identify the objective meaning of the statutory words in context.
2. The phrase “held for purposes other than those of journalism, art or literature” means held for purposes apart from and not including those specified purposes. It does not mean that information is within the Act merely because it is also held for a non-specified purpose. Where information is held for mixed purposes, it is outside the Act if it is held to any significant extent for journalism, art or literature. The predominant-purpose test is not the law.
3. The same reading accords with the structure of Schedule 1. A predominant-purpose test would produce unlikely results for the Bank of England, the Competition Commission and other listed bodies. The reasoning in Waugh v British Railways Board [1980] AC 521, where a dominant-purpose test resolved competing common-law policy considerations, did not determine the meaning of this statutory provision.
4. Even on the assumed application of the predominant-purpose test, the Tribunal’s decisions could not stand. The Tribunal failed properly to engage with essentially uncontradicted evidence that the requested financial information was held at operational or commissioning level, where it informed programme-making and editorial decisions. Information later aggregated for corporate accounting or Charter purposes was held in a different form and location. The Tribunal also failed adequately to distinguish those forms of information.
5. The High Court should show caution before interfering with specialist tribunal findings of fact, as illustrated by Yeboah v Crofton [2002] IRLR 634, British Telecommunications Plc v Sheridan [1990] IRLR 27, Hollister v National Farmers Union [1979] ICR 542 and Department for Business Enterprise and Regulatory Reform v O’Brian and The Information Commissioner [2009] EWHC 164 (QB). That caution applies principally to factual perversity and is less restrictive where the legal formulation is new and its application is closely intertwined with fact.
6. A later Commissioner decision was not binding evidence in these appeals. Whether it should be admitted as persuasive material was a matter for the Tribunal’s procedural discretion. The Tribunal was entitled to decline to reopen its decision.

• High Court (Administrative Court): statutory appeal under section 59 from the Information Tribunal’s preliminary decision promulgated on 7 November 2008. The appeal was allowed and the Tribunal’s decisions were quashed.