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.