Supreme Court judgment: Sugar v BBC

by Carl Gardner on February 15, 2012

The Supreme Court has today given judgment in this case, about the extent to which the Freedom of Information Act 2000 applies to information the BBC holds for journalistic purposes.

I’m afraid the case has something of the Dickensian about it: Mr. Sugar (a lawyer) asked the BBC to disclose the “Balen report” – an internal report about the impartiality of the BBC’s Middle East coverage – early in  2005. They refused. The case has since been to the Information Commissioner, to the Information Tribunal, the High Court, the Court of Appeal, the House of Lords (in 2009), then back to the High Court, back to the Court of Appeal and now finally to the Supreme Court. In the meantime, Mr. Sugar has died.

The entire dispute is about whether the Balen report had to be disclosed by the BBC under the FOI regime. Part VI of Schedule 1 to the 2000 Act provides that the concept of a public authority which owes a duty of disclosure includes

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

So: was the Balen report held for purposes of journalism, or other purposes?

There’s no doubt about how the Supreme Court has disposed of the case on its facts: the Balen report, all five agree, is held for journalistic purposes, and is therefore not disclosable under freedom of information law. The Justices reach this conclusion on the basis of slightly different reasoning, though.

Lord Wilson is in a minority of one in holding that information falls outside what he calls the BBC’s FOI “designation” if it’s held predominantly for journalistic purposes. If the report had been held partly for journalistic but predominantly for other purposes, he’d have seen it as subject to a duty of disclosure.

The other four Justices base their conclusion on reasoning that seems more protective of the BBC. Lord Phillips says a purposive approach must be taken to the legislation, so that information is held for a journalistic purpose and falls outside what he calls the “definition” if its disclosure would risk interference with the broadcasting function of the BBC (para. 65). Lord Walker agreed with Lord Neuberger in the Court of Appeal, that (para. 75 of Lord Walker’s judgment, para. 44 of Lord Neuberger’s)

once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under the Act, even if the information is also held by the BBC for other purposes.

He did though think that the directness of the journalistic purpose has to be taken into account so that information only remotely linked to journalism should be disclosable (para. 83-84).

Lord Brown (para. 104) holds that information held to any significant degree for the purposes of journalism is information held for the purposes of journalism. The fact that it may be held for other purposes too makes no difference. Lord Mance agrees (para. 111) with Lord Walker and the majority.

One interesting aspect of the judgment is Lord Phillips’ clear expression at paragraph 61 of the “matters” on which all the Justices agreed and which were sufficient to resolve the case in the BBC’s favour:

i) At all material times the Balen report was held by the BBC predominantly for the purposes of journalism;

ii) On the true construction of Part VI of Schedule 1 to the Act information held predominantly for the purposes of journalism does not fall within the definition, even if the information is held for other purposes as well.

Although this helps emphasise that the Court was essentially unanimous in ruling for the BBC, and will help BBC lawyers – however cautious they may be – identify a safe basis on which to refuse disclosure in future, Lord Phillips’s summation is I fear potentially misleading as to the true legal precedent established by the case.

The reason the BBC won is the one agreed by the majority: essentially (Lord Phillips put it slightly differently) that information held to any significant degree for the purposes of journalism is exempt from disclosure. That seems to me the ratio decidendi of the case – in other words, the principle of law the case lays down – and it would be unfortunate if lawyers and judges were to overlook that in future in favour of Lord Phillips’s summary.

Finally, Lord Phillips (para. 67), Lord Brown (para. 106) and Lord Mance (para. 112) all refer to the possibility of today’s journalistic material being tomorrow’s archive; and so at some point held for non-journalistic purposes, not exempt from the BBC’s disclosure obligations. If they’re right, then some follower of the late Mr. Sugar may one day, in spite of this judgment, be able to got back to the Information Commissioner and force the BBC to disclose the Balen report.

BBC lawyers will no doubt advise editors to keep Balen close to hand for some years.

{ 7 comments… read them below or add one }

1 Adam Wagner February 15, 2012 at 14:17

Thanks for the speedy analysis Carl. Are you suggesting that since the Supreme Court found that the report was at all material times held predominately for the purposes of journalism, the justices’ comments on other scenarios – e.g. when information is held in part but not predominantly for the purposes of journalism – are obiter?

2 Carl Gardner February 15, 2012 at 14:33

No, Adam – the opposite! I think the approach you put to me in your question is exactly what I think Lord Phillips risks leading people to think.

The majority didn’t rule in favour of the BBC on these facts because as a matter of law predominantly journalistic information is exempt; they did so because as a matter of law any significantly journalistic information is exempt, even if it’s held predominantly for other purposes.

It seems to me this second reasoning which must be the ratio (i.e. a legally binding principle now laid down as a precedent), and that everything in Lord Wilson’s judgment must be obiter (i.e. not binding in law).

3 Adam Wagner February 15, 2012 at 16:57

Aha! I was put off by “to any significant degree”, – I suppose another way of putting it would be “in any real sense”. But there has to be a dividing line somewhere, no?

4 TonyN February 15, 2012 at 19:17

Although there can now be no doubt that the Balen Report is now beyond public reach by means of he FOIA, that document is not necessarily typical of material sought from the BBC under the legislation. It is relatively easy to argue that this report is held by the BBC for the purpose of journalism to a ‘significant’ extent and therefore not subject to the FOIA.
The judgement handed down by the Supreme Court this morning is by no means an easy read for the layperson, but it would seem to me that the court has gone some way towards limiting the range of information that the BBC will be able to withhold in future, although nowhere near as far as might have been hoped. I would be most interested to know whether contributors here agree.
The first test of the Supreme Court’s judgement may be a case that I have before the Information Tribunal at the moment. This concerns information that the BBC may find much more difficult to claim is held for journalistic purposes to a significant extent, or that its disclosure would ‘interfere with the performance of the functions of the BBC in broadcasting journalism’.
We will see!

5 Steven Baker February 16, 2012 at 15:31

I do not agree that “the Balen Report is now beyond public reach by means of he FOIA”.

To reach such a conclusion one would have to hold that Lord Phillips’ statement that “At all material times the Balen report was held by the BBC predominantly for the purposes of journalism” is somehow forward looking when it is clearly not.

6 Gordon Bell November 25, 2012 at 19:15

Another FOI request relating to a BBC report indicating that a police investigation into the deaths of 45 servicemen who had attended Porton Down was being conducted. The BBC refused my request based on the BBC vs Steven Sugar case. “OTHER THAN” “ART” “JOURNALISM” “LITERATURE”. Meanwhile there are 108 RAF servicemen who attended Porton Down where they were injected with a cell altered bacteria derived from salmonella abortus equi who remain missing with no attempt being made to trace them.

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