Sugar v The British Broadcasting Commission & Anor

For the Schedule 1 Part VI limitation in the Freedom of Information Act 2000, information held by the BBC for a genuine purpose of journalism is outside FOIA even if it is also held for other purposes. The statute does not require journalism to be the sole or dominant purpose. Journalism has its natural meaning and includes reviewing and improving journalistic standards; strategic or managerial oversight does not itself remove an activity from journalism. The question remains fact-sensitive and should be approached relatively narrowly. A mere connection with journalism is insufficient. Information may later cease to be held for journalism, for example when it becomes archival, but no separate de minimis inquiry is required.

Steven Sugar requested disclosure of the Balen Report, an internal BBC review of its Middle East news coverage. The BBC refused the request, contending that the report was held for purposes of journalism and was therefore outside the BBC’s entry in Schedule 1 Part VI to the Freedom of Information Act 2000. The Information Commissioner agreed.

The Information Tribunal held that the report was disclosable because, although initially prepared for journalistic purposes, it was later held for strategic and resource-allocation purposes. Irwin J reversed that decision in [2009] EWHC 2349 (Admin). The central issues were whether the statutory test required a dominant or sole journalistic purpose, and whether the report remained held for journalistic purposes when considered by the BBC Journalism Board.

Appeal dismissed. The Court of Appeal held that the Tribunal had made an error of law and that its conclusion could not stand on the evidence.

1. On an appeal from a specialist tribunal under sections 58 and 59 of the Freedom of Information Act 2000, the appellate court should respect the tribunal’s expertise and findings. It should not interfere merely because it would have evaluated matters differently. It must, however, correct an error of law which would produce a different outcome. The approach in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49, [2008] 1 AC 678, and HM Revenue & Customs v Procter & Gamble UK Ltd [2009] EWCA Civ 407 was applied.
2. Part VI of Schedule 1 must be construed according to the statutory words and their context. If information is held by the BBC for a genuine purpose of journalism, it is outside FOIA even if it is also held for another purpose. Neither a dominant-purpose nor a sole-purpose test applies. The dominant-purpose approach in Waugh v British Railways Board [1980] AC 521 was not an appropriate analogy because it concerned litigation privilege and different policy considerations.
3. Journalism has its natural meaning. The Tribunal’s description of functional journalism was accepted. It includes gathering and verifying material, editorial judgment, and maintaining and enhancing the standards and quality of journalism, including professional supervision and reviews of programme-making standards. The inquiry should be relatively narrow. Information with only an indirect connection to journalism will not normally qualify. Its purpose may also change over time, including when journalistic material becomes archival.
4. The Tribunal wrongly distinguished the report’s original journalistic purpose from its later consideration by the Journalism Board. The Board was undertaking the same review and enhancement of journalistic standards identified by the Tribunal as functional journalism. The strategic or managerial level at which that work occurred did not alter its journalistic purpose.
5. Moses LJ additionally considered Article 10 of the European Convention on Human Rights. The competing interpretations of FOIA were each capable of being consistent with Article 10, so the Convention supplied no decisive assistance. Munby LJ agreed with both judgments.

1. Court of Appeal (Civil Division): Dismissed Mr Sugar’s appeal and upheld the conclusion that the Balen Report was outside FOIA.
2. High Court, Administrative Court: Irwin J reversed the Information Tribunal’s decision in [2009] EWHC 2349 (Admin), holding that the Tribunal had erred in law.
3. Information Tribunal: Reversed the Information Commissioner and held that the BBC was a public authority in relation to the report and that it was disclosable.
4. Earlier jurisdiction appeal: The separate issue of the Tribunal’s jurisdiction was ultimately determined by the House of Lords in [2009] UKHL 9.