British Broadcasting Corporation v Sugar & Anor

For the purposes of Part VI of Schedule 1 to the Freedom of Information Act 2000, information held by the BBC for purposes including journalism, art or literature is outside the Act where it is held to any significant extent for one of those purposes. The statutory wording does not impose a “predominant purpose” test. Journalism is to be understood broadly. It may include strategic or managerial decisions directed towards maintaining or improving journalistic output, including impartiality. The relevant question concerns the purpose for which the information is held, not merely the activity performed by its current holder. Even on the assumed predominant-purpose approach, the assessment must consider the BBC as a whole, the information’s commissioning and content, its realistic uses, and the period when the request was made.

Steven Sugar requested disclosure of the Balen Report, an internal BBC report concerning its coverage of Middle Eastern affairs. The BBC refused disclosure, relying on the exclusion in Part VI of Schedule 1 to the Freedom of Information Act 2000 for information held for purposes other than journalism, art or literature.

The Information Commissioner initially supported the BBC. The Information Tribunal later held that the report had become disclosable when considered by the Journalism Board for strategic policy and resource-allocation purposes. Following the House of Lords’ decision on the jurisdiction issue, the BBC’s statutory appeal on the Journalism Issue was remitted to the Administrative Court.

1. Appeal allowed. The Tribunal’s decision was quashed and the effect of the Commissioner’s decision restored.
2. The phrase “held for purposes other than those of journalism, art or literature” does not establish a “predominant purpose” test. Applying ordinary statutory meaning, information held for mixed purposes remains outside the Act if it is held to any significant extent for journalism, art or literature. The contrary interpretation, under which any additional non-journalistic purpose would bring the information within the Act, was rejected.
3. The statutory language must be interpreted objectively and consistently across Schedule 1. A predominant-purpose reading would produce improbable consequences for other listed bodies, including the Bank of England and bodies acting as tribunals.
4. “Journalism” has a broad meaning. It is not confined to “functional journalism”. Decisions concerning impartiality, Charter obligations, editorial supervision and structural changes may still be journalistic where their purpose is to sustain or improve journalistic output. The test concerns the purpose for which information is held, rather than the immediate activity of the person holding it.
5. Even if the predominant-purpose test were assumed, the Tribunal erred by focusing on the Journalism Board alone. The assessment would have to consider the BBC as a whole, the reasons for commissioning the information, its content, its realistic applications, and the relevant period. The report’s purpose was to improve journalism, not to achieve financial savings.
6. The specialist Tribunal was entitled to make a judgment applying law to fact, despite the witnesses’ evidence. Appellate caution concerning factual perversity does not prevent intervention on questions of law, particularly where the legal formulation is new and its application to facts is complex.

• House of Lords: In British Broadcasting Corporation v Sugar [2009] UKHL 9, the majority held that the Commissioner and Tribunal had jurisdiction and remitted the BBC’s statutory appeal on the Journalism Issue to the Administrative Court.
• Court of Appeal: The jurisdiction appeal had previously been dismissed: [2008] EWCA Civ 191.
• Administrative Court: The Tribunal’s decision on the Journalism Issue was quashed and the Commissioner’s decision restored.