On appeal from: [2010] EWCA Civ 715

In 2005 the appellant made a request under the Freedom of Information Act 2001, s 1 for disclosure of the Balen Report, which was an independent report commissioned by the BBC on the impartiality of its coverage of Middle Eastern affairs, namely the Israeli-Palestinian conflict, which was intended to be an internal briefing document. The BBC is subject to FOIA to a limited extent – under s 7(1) and Sch 1, the Act only applies to “information held for purposes other than those of journalism, art or literature” in relation to the BBC. The BBC therefore rejected the appellant’s request, maintaining that the report was for the purposes of journalism and so was outside the scope of the Act. The appellant began litigation which led to the House of Lords on a jurisdiction point, and then appealed to the Information Tribunal, contending that if information is held only partly for purposes other than journalism it is within the scope of FOIA. The Tribunal held that the Balen Report was within the scope of FOIA, as after it had been placed before the Journalism Board it was then predominantly held for purposes other than journalism. This was overturned by Irwin J and that decision then upheld by the Court of Appeal.

The Supreme Court unanimously dismissed the appeal. Lords Phillips, Walker, Brown and Mance dismissed it on the basis that even if information was held only partly for the purposes of journalism, art or literature, it remained outside the scope of FOIA. Lord Wilson dismissed it on the basis that information held predominantly for the purposes of journalism was exempt, and that the Balen Report fell under this category of information. The Court of Appeal was correct in deciding that once it was established that the information was held to any significant degree for the purposes of journalism, it remained exempt even if the information was held for any other purposes. The legislative purpose of FOIA is to promote an important public interest in access to information about public bodies; but there is a powerful public interest that the public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work. The purpose of the designation would have failed if the coexistence of other non-journalistic purposes resulted in the loss of immunity.

The argument under ECHR, art 10 was dismissed, noting the body of jurisprudence defining the nature of the right was not imposing positive obligations on a State to disseminate information, but prohibits a government from restricting a person from receiving information willingly imparted.

For the Court’s press summary, please download: Press Summary
For judgment, please download: [2012] UKSC 4
For a non-PDF version of the judgment, please visit: BAILII