British Broadcasting Corporation v Sugar (No 2)

The Supreme Court considered the meaning of the qualification in Part VI of Schedule 1 to the Freedom of Information Act 2000 that the BBC is subject to the Act only in respect of “information held for purposes other than those of journalism, art or literature”. The court examined whether, where information is held for dual and opposite purposes, it falls within the designation only if the non-journalistic purpose is dominant, or whether any significant journalistic purpose excludes the information from the Act.

The majority held that the Balen report was held for the purposes of journalism and therefore fell outside the scope of the Act even though it was also held for other purposes. The court reasoned from the language and purpose of the Act (including the need to protect the BBC's freedom of expression and editorial independence) and treated the designation as serving an immunity for information connected to the BBC’s journalistic output. The court also considered and rejected the appellant’s submission that article 10 ECHR required a different construction that would have resulted in disclosure.

Background and facts. The BBC commissioned the Balen report (an internal review of its Middle East coverage). In January 2005 Steven Sugar requested a copy under the Freedom of Information Act 2000. The BBC refused, relying upon the Schedule 1(Part VI) designation that limits the Act’s application to information held for purposes other than journalism, art or literature. The Information Commissioner, the Tribunal and lower courts considered jurisdictional and substantive issues in a protracted multi-stage litigation.

Procedural posture. The litigation passed through the Information Tribunal (which found the report within the Act on a dominant-purpose basis), Davis J in the High Court ([2007] EWHC 905 (Admin)), the Court of Appeal ([2008] EWCA Civ 191 and later [2010] EWCA Civ 715), the House of Lords (on jurisdiction, [2009] UKHL 9) and Irwin J in the High Court ([2009] EWHC 2349 (Admin)), before reaching the Supreme Court on the appellant’s challenge to the Court of Appeal order.

Nature of the claim. The request sought disclosure of the internal Balen report under FOIA. Central legal issues were (i) the proper construction of the Schedule 1 Part VI designation and in particular the meaning of “purposes of journalism”, and (ii) how the designation operates where information is held partly for journalistic purposes and partly for other purposes (the polarised constructions and the dominant-purpose construction). The court also considered whether article 10 ECHR required a different statutory construction.

Issues framed by the court.

• How should the phrase “purposes other than those of journalism, art or literature” be construed?
• If information is held for both journalistic and other purposes, does any significant journalistic purpose exclude the information from the Act, or must the non-journalistic purpose be dominant to bring the information within the Act?
• Does article 10 ECHR require an interpretation favouring disclosure?

Court’s reasoning and conclusions. The majority concluded that the Balen report was held for the purposes of journalism (the Tribunal’s tripartite description of journalistic activities — gathering, editing and internal quality review — was endorsed). The majority read the designation in light of the Act’s scheme and purpose: Parliament intended to protect the BBC’s freedom of expression and editorial independence by excluding from the Act information connected to its journalistic output. Accordingly, information held for journalistic purposes is outside the Act even if also held for other purposes. The court rejected the appellant’s argument that article 10 required a different construction: the designation represented a legitimate and proportionate protection of the BBC’s freedom to impart information and did not produce an unjustified interference with any right to receive information.

Subsidiary findings. The court discussed alternative constructions: Lord Wilson (alone) preferred a dominant-purpose test (information is within the Act only if the non-journalistic purposes are dominant), but the majority rejected that approach. The court noted that where information within the Act is disclosed (if any), focused exemptions in Part II would operate to protect particular interests; it also recognised there is no bright-line test and that decision-makers must assess proximity/directness to journalistic output.

The appeal is dismissed. The Supreme Court held that the Balen report was held for the purposes of journalism and that, once information is held for journalistic purposes, it falls outside the scope of the Freedom of Information Act 2000 even if it is also held for other purposes. The court reasoned from the language and purpose of the Act, the need to protect editorial freedom under article 10 ECHR, and the practical operation of the Schedule 1 designation.

Information Tribunal decision (appeal filed 30 December 2005; journalism decision: 29 August 2006). High Court (Davis J) allowed BBC’s appeal on jurisdiction, [2007] EWHC 905 (Admin). Court of Appeal dismissed Sugar’s appeal on jurisdiction, [2008] EWCA Civ 191. House of Lords allowed Sugar on jurisdiction and remitted the journalism issue, [2009] UKHL 9. Irwin J allowed the BBC’s remitted appeal on the journalism issue, [2009] EWHC 2349 (Admin) (and related financial-information judgment at [2009] EWHC 2348 (Admin)). Court of Appeal (Lord Neuberger MR, Moses and Munby LJJ) dismissed the estate’s appeal, [2010] EWCA Civ 715. The Supreme Court dismissed the appeal on 15 February 2012, [2012] UKSC 4.