Sugar (Deceased) (Represented by Fiona Paveley) v British Broadcasting Corporation and another

Information held by a public service broadcaster for any significant journalistic, artistic or literary purpose falls outside the Freedom of Information Act 2000, even if it is also held, predominantly or otherwise, for another purpose. Predominance is not the test. The decision-maker should instead consider the directness of the connection between the information and the broadcaster’s output. A sufficiently immediate journalistic purpose attracts the statutory protection, while a remote or merely archival connection does not.

Article 10 does not confer a general right to obtain information which domestic freedom of information legislation places outside its scope. In any event, protecting the broadcaster’s freedom to gather, produce and review journalistic material justifies the restriction.

The BBC commissioned an internal report on the quality and impartiality of its coverage of the Israeli-Palestinian conflict. Mr Sugar requested the report under the Freedom of Information Act 2000. The BBC refused disclosure because it held the information for purposes of journalism.

The Information Tribunal found that the report had later come to be held predominantly for non-journalistic purposes. Irwin J allowed the BBC’s appeal, [2009] EWHC 2349 (Admin). The Court of Appeal dismissed Mr Sugar’s further appeal, [2010] EWCA Civ 715.

The Supreme Court proceeded on the premise that the report was held predominantly for journalism but partly for other purposes. The central issues were whether dual-purpose information fell within the Act and whether article 10 required its disclosure.

1. Appeal dismissed by a majority of four to one. Lords Phillips, Walker, Brown and Mance held that information falls outside Parts I to V of the Freedom of Information Act 2000 once it is held to a significant degree for journalism, art or literature. It remains outside the Act even if the BBC also holds it, predominantly or otherwise, for another purpose. Lord Wilson agreed in the result but preferred a dominant-purpose test.

2. The majority rejected predominance as the governing test. The statutory protection exists to prevent interference with the BBC’s journalistic, artistic and literary output. That purpose would be defeated if the coexistence of a non-journalistic purpose removed the protection. The relevant wording places the emphasis on information which is not disclosable, rather than requiring a comparison of competing purposes: per Lords Walker, Brown and Mance at paras 75–79, 103–106 and 109–112.

3. The connection with journalism must nevertheless be sufficiently direct. Per Lord Phillips, information is held for journalism where an immediate object of holding it is its use for that purpose. Per Lord Walker, the decision-maker should examine the proximity between the information, the BBC’s journalistic activities and its end-product. A remote connection, such as ordinary corporate expenditure, will not usually suffice. Material held solely as an archive may therefore fall within the Act: paras 64–67, 83–84 and 106.

4. The concept of journalism includes collecting, writing and verifying material; editing and selecting it; broadcasting or publishing it; and monitoring and reviewing output to preserve accuracy, balance and quality. The Balen report was a self-critical review directed towards improving the impartiality of the BBC’s coverage. It was accordingly held for journalism throughout the material period: paras 38–44 and 85.

5. Article 10 did not require disclosure. Per Lord Brown, with whose analysis Lord Mance agreed, article 10 creates no general right of access to information held by a public authority. The Strasbourg authorities relied upon did not establish such a right in these circumstances. Even if refusal interfered with the freedom to receive information, the statutory protection was justified by the BBC’s own freedom to gather, produce and review journalistic material without inhibition: paras 88–102 and 113. Lord Wilson reached the same ultimate conclusion on justification at para 58.

1. United Kingdom Supreme Court: By a majority of four to one, dismissed the appeal from [2010] EWCA Civ 715.
2. Court of Appeal: Dismissed Mr Sugar’s appeal and upheld the BBC’s construction of the designation: [2010] EWCA Civ 715, [2010] 1 WLR 2278.
3. High Court: Irwin J allowed the BBC’s remitted appeal from the Information Tribunal: [2009] EWHC 2349 (Admin), [2010] 1 WLR 2278.
4. House of Lords, earlier jurisdictional appeal: Held by a majority that the Information Tribunal had jurisdiction and remitted the BBC’s appeal: [2009] UKHL 9, [2009] 1 WLR 430.
5. Court of Appeal, earlier jurisdictional appeal: Dismissed Mr Sugar’s appeal: [2008] EWCA Civ 191, [2008] 1 WLR 2289.
6. High Court, earlier jurisdictional proceedings: Davis J allowed the BBC’s jurisdictional appeal, set aside the Tribunal’s decision and dismissed Mr Sugar’s protective judicial review claim: [2007] EWHC 905 (Admin), [2007] 1 WLR 2583.