Case Law: Sugar v BBC, battle for the Balen Report results in bitter sweet BBC victory – Sara Mansoori and Claire Darwin

27 02 2012

In the long-running case of Sugar (Deceased) v British Broadcasting Corporation [2012] UKSC 4, the Supreme Court had to determine to what extent the Freedom of Information Act 2000 (“the Act”) applies to information held by the BBC for journalistic purposes. This was the second time that the case had reached the highest court, the first time being in February 2009 when the House of Lords allowed Mr Sugar’s appeal and held that even in relation to a FOI request that was beyond the scope of the Act, the BBC remained a public authority for the purposes of the Act.

The matter began back in January 2005 when Mr Sugar, a solicitor and a supporter of the state of Israel, made a FOI request to the BBC for disclosure of a Report written by Malcom Balen, which dealt with the BBC’s coverage of Middle Eastern Affairs in recent years and the validity or otherwise of complaints about it (“the Balen Report).  Mr Sugar considered that the BBC’s coverage of Israel’s conflict with the Palestinians had been seriously biased against it.

As the Head of Legal blog notes, the story does have something of the Dickensian about it as a result of the number of tribunals and courts that have been involved and the fact that after he had filed his Notice of Appeal to the Supreme Court hearing Mr Sugar died and the action was continued by a representative of his estate.

Mr Sugar’s request was made under the Act, which, as it well known, provides a general right of access to information held by public authorities. A request under the Act can be made in respect of information held by or on behalf of a public authority, unless one of the exemptions (qualified or absolute) regarding certain categories of information applies.

A public authority is defined in section 3(1) of the Act as being a body, person or office-holder listed in Schedule 1 of the Act (or designated by future order of the Secretary of State). Section 7(1) provides:

“Where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts 1 to V of this Act applies to any other information held by the authority

Schedule 1 contains a long list of bodies, persons and office-holders. The BBC is listed at Part IV of Schedule 1, which includes the following words of limitation:

“The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature.

It is also of note that Part IV includes Channel Four, the Gaelic Media Service and Sianel Pedwar Cymru (the Welsh television channel) also only in respect of information held for purposes other than those of journalism, art or literature. Similar limitations are provided for in Schedule 1 in respect of information held by the Bank of England (some of the functions are exempt), the Traffic Commissioners and the Royal College of Veterinary Surgeons (information held as a tribunal is exempt).

Accordingly, the issue for the Supreme Court was whether the Balen Report about the BBC’s coverage of Israeli and Palestinian conflict was held for purposes other than those of journalism. The issue was complicated by the finding of fact below that the Balen Report (or the information in the Balen Report) was held by the BBC partly for purposes of journalism and partly for other purposes.

Although the Supreme Court was unanimous in finding that the Balen Report was exempt for disclosure under the Act, they were divided about their approach to Part IV, Schedule 1 of the Act.

Lord Wilson, who was in a minority of one, considered that because the information was held partly for journalistic and partly for non-journalistic purposes, it was necessary to consider the predominant purpose for which the information was held, and that any information held predominantly for non-journalistic purposes would be disclosable. He disagreed with Lord Neuberger who in the Court of Appeal had expressed concerns about this test stating that the identification of the dominant purpose would be a subjective and often speculative exercise. He pointed to the fact that Irwin J appeared to have had no difficulty in concluding that the dominant purpose for which the BBC had held financial journalism was that of journalism in BBC v Information Commissioner [2009] EWHC 2348 (see [55] and [57] in particular).

The majority of the Supreme Court (Lords Phillips, Walker, Brown and Mance) opted for a purposive interpretation of Part IV, Schedule 1 of the Act. Rather than consider the purpose for which the information was held by the BBC, they held that any information held to any significant degree for the purposes of journalism was excluded from the operation of the Act.

In his judgment Lord Phillips explored the purpose of the words of limitation used in the Act. He held that the aim of the legislator was to prevent interference with the performance of the functions of the BBC in broadcasting, journalism, art and literature. Accordingly, he held that the BBC was protected from having to disclose information which would risk interference with their broadcasting function, regardless of the predominant purpose for which the information was held ([61]-[65]).

Lord Walker held that under the Act there were only two categories of information under the Act, one is information held for purposes that are in no way those of journalism, and the other is information held for the purpose of journalism, even if it is also held for other (possibly more important) purposes [75]. Lord Walker went on to state that he recognised that this interpretation of the limitation may be seen as conferring on the BBC an immunity so wide as make the statutory redemptions redundant and leave the BBC almost free of obligation under the Act [82].   The correct approach, according to Lord Walker, is for the Tribunal:

“while eschewing the predominance of purpose as a test, to have some regard to the directness of the purpose.”

Lord Walker suggested that the difference between these tests was not weighing up one purpose against another, but considering the “proximity of the subject-matter of the request and the BBC’s journalistic activities and end product” [83]. The example given was the cost of cleaning the BBC boardroom which would not relate to the journalistic activities, and therefore not ‘directly’ relate to it.  This distinction is likely to be a difficult one to assess in practice and will undoubtedly lead to more targeted and carefully worded FOI requests.

Lord Brown reached his conclusion that it was not necessary to consider any predominant purpose where information was held partly for journalistic and partly for non-journalistic purpose and if the information is held “to any significant degree” for the purpose of journalism then it was clear from the wording of the Act that it did not apply to that information [103] – [104].

Archives

There was also an interesting discussion about archived material which could leave the door open for a future request for the Balen Report. Lord Phillips stated that when considering whether or not such material fell within the scope of the Act he agreed with Lord Neuberger that one should consider the “directness of the purpose of holding the information and the BBC’s journalistic activities”. He held:

“Information should only be found to be held for purposes of journalism, art or literature if an immediate object of holding the information is to use it for one of those purposes. If that test is satisfied the information will fall outside the definition, even if there is also some other purpose for holding the information and even if that is the predominant purpose.” [67]

Lord Brown stated that where archival purposes were concerned then the question to be asked was whether there remained any sufficiently direct link between the BBC’s continuing hold of the information and the achievement of its journalistic purposes and not the consideration of any predominant purpose [106].

Lord Mance stated that in his view that a library maintained for current reference would contain material held for the purposes of journalism, art or literature, as opposed to material which is only stored for historical purposes [112].

Article 10: The right to receive information

Mr Sugar argued that he had the right to disclosure of the Report under Article 10 ECHR which he said recent Strasbourg case law made clear recognised a right of access to information (referring specifically to Matky v Czech Republic, Tarsasag v Hungary and Kenedi v Hungary). The Supreme Court did not agree that such a right to receive information arose in the current case. Lord Brown noted that Article 10 creates no general right to freedom of information, and nor was it interfered with when a public authority which was acting consistently with domestic legislation refused access to information [94]. He went further, and explained that even if there had been such an interference, it would have been justified because in his view it is open to the state to legislate for a blanket exclusion of any requirement to disclose information held for the purposes of journalism [98].

Comment

While there were differences in emphasis in each of the Supreme Court judgments, the majority view was clear in rejecting the predominant purpose test. This is likely to lead to more targeted FOI requests in future. The question of archives remains uncertain: Lord Phillips’ test is whether the “immediate object” of holding the information is journalistic. But what if the purpose was a journalistic one when the request was made, but the public authority knows that this is going to change very shortly afterwards? Under s.16 of the Act there is a duty to provide advice and assistance. The Section 45 Code of Practice issued by the Information Commissioner’s interprets this widely. Does this mean that the BBC would have to inform the person making the FOIA request that it will soon not be held for journalistic purposes?

Finally, the decision to find that there was no right of access to the Balen Report under Article 10 in this case has to be read in light of the facts: this was a case where access was sought to journalistic information and therefore allowing access would (so the Supreme Court held) be likely to have affected the candour of any similar future reports. Thus Article 10 ‘freedom of expression’ would trump any Article 10 ‘right of access to information’ in any event.

Sara Mansoori and Claire Darwin are barristers at Matrix Chambers.


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5 03 2012
Law and Media Round Up – 5 March 2012 « Inforrm's Blog

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