David Keighley v The Information Commissioner & Anor

For the BBC journalism derogation under the Freedom of Information Act 2000, the relevant question is whether an immediate object of holding the information is to use it for journalism. A predominant-purpose test is inappropriate. Information may be excluded from disclosure where there is a sufficiently direct and proximate link with the BBC’s journalistic activities and output, even if it is also held for other purposes. The protection is narrower for material held only for historical or archival purposes. Whether that point has been reached is fact-sensitive and depends on the continuing link with current journalism. A broad request covering several years cannot establish archival status without evidence supporting a dividing line. The Upper Tribunal dismissed the appeal because the First-tier Tribunal had made findings open to it and had not erred in law.

The appellant requested information from the BBC concerning an Ipsos MORI survey reported in the BBC’s 2018/2019 Annual Report and Accounts, including commissioning documents, the presentation of results, and complaints about BBC impartiality from 2015 onwards.

The BBC relied on the journalism derogation in Part VI of Schedule 1 to the Freedom of Information Act 2000. The Information Commissioner upheld that position. The First-tier Tribunal dismissed the appellant’s appeal on 7 February 2022, holding that the requested information was held, at least in part, for the purposes of journalism. The central issues before the Upper Tribunal were the proper construction of the journalism derogation, the relevant date for assessing it, and whether some material had become archival.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law. Its findings of fact and reasons were adequate.
2. The relevant date for assessing whether information was held for the purposes of journalism was 25 June 2020, the date of the BBC’s response to the request. This followed the approach to timing under FOIA exemptions and the public-interest test.
3. The question whether the BBC held information for particular purposes was factual. Whether those purposes fell within the statutory expression “purposes of journalism” was a question of law. The Upper Tribunal could therefore determine the statutory issue on the facts found, while treating the First-tier Tribunal’s findings with respect.
4. Under BBC v Sugar (No 2) [2012] UKSC 4, information need not be held predominantly for journalistic purposes. It is sufficient that an immediate object of holding it is to use it for journalism and that there is a sufficiently direct link with the BBC’s journalistic activities and end-product. Remotely linked operational or routine financial information will ordinarily fall outside the derogation.
5. The survey’s underlying contracts, brief, instructions and related meeting notes, together with information about changes to the presentation of the results, were sufficiently proximate to journalism. They were used to commission a survey which influenced content and reflected internal views about BBC content and audience engagement. The First-tier Tribunal was entitled to treat this as falling within journalism.
6. Complaints and BBC responses may be held for journalistic purposes where they are used to monitor, maintain and enhance output. Archival status is fact-sensitive. Material held solely for historical purposes will not attract the derogation, but no fixed period or formal archival act is required. On the evidence, there was no proper basis for dividing the complaints into current and archival material, and the broad request did not establish that the material had ceased to have a sufficiently direct link with current journalism.
7. The First-tier Tribunal was entitled to accept the BBC’s evidence and draw the inferences it did. That did not impose a legal burden or presumption on the appellant. The appeal was dismissed on both grounds.

• Upper Tribunal: The appeal against the First-tier Tribunal’s decision was dismissed. The Upper Tribunal held that the First-tier Tribunal’s decision involved no error of law.
• First-tier Tribunal (General Regulatory Chamber, Information Rights): On 7 February 2022, the Tribunal dismissed the appeal against the Information Commissioner’s decision notice dated 2 August 2021.
• Information Commissioner: The decision notice held that information within parts 1 and 8 of the request would be held for the purposes of journalism and was outside the scope of FOIA.