On 23 November 2011, the Supreme Court heard an appeal in the case of Sugar v BBC [2010] EWCA Civ 715, a long-standing and well-publicised dispute stemming from a freedom of information request made of the BBC in January 2005. Having been heard by the Information Commissioner, the Information Tribunal and the High Court, the claimant’s appeal against the decision of the Court of Appeal (given by Master of the Rolls Lord Neuberger) has now come before the Supreme Court.

The appeal was heard and shall be considered by a five justice panel of Lords Phillips, Walker, Brown, Mance and Wilson.

The facts

In 2004, the BBC produced a report into BBC news coverage of the Middle East, and in particular coverage of the ongoing dispute between Israel and Palestine. The report, written by former BBC news editor Malcolm Balen and referred to as the “Balen Report”, had been commissioned in response to a high volume of complaints raised by various public interest bodies into the manner in which the BBC was reporting on Middle East affairs. Balen was instructed to examine the pattern of these complaints and establish whether such concerns were justified and, if so, the steps that should be taken to improve the impartiality of BBC news reporting.

In 2005, the claimant (Stephen Sugar, a London solicitor who is now deceased) made a request for the BBC to disclose the Balen Report under the Freedom of Information Act 2000. The BBC declined to comply with this request, citing an exception within the Act that they claimed excluded the Balen Report from the scope of the BBC’s freedom of information obligations. The claimant subsequently referred the matter to the Information Commissioner under the prescribed procedure as set out within the Act.

The law

The Act purports to give a “general right of access to information held by public authorities” and pursuant to s 1 of the 2000 Act, any public authority subject to a request made under the Act must first confirm whether such information exists, and then communicate that information to the person who has made the request.  Sch 1 of the Act contains a list of public authorities.  It also specifies the limits on the information that falls under the jurisdiction of the Act in respect of a number of these public authorities including the Bank of England and the Competition Commission.

The BBC is listed in Schedule 1 of the Act which provides that the general right of access set out in section 1 shall only apply to the BBC “in respect of information held for purposes other than those of journalism, art or literature”. It was in reliance on this provision that the BBC initially refused the claimant’s application, on the basis that the Balen Report “. . . directly impacts on the BBC’s reporting of crucial world events . . . ” and had thus been produced for the purposes of reviewing the journalistic coverage of Middle East affairs.

The issue before the courts is therefore whether the Balen Report was produced for ‘purposes other than those of journalism’, and consequently whether the BBC was entitled to refuse the claimant’s application.

Procedural history

Following the BBC’s initial rejection of the claimant’s application, the claimant referred the matter to the Information Commissioner. The Commissioner rejected the application and endorsed the initial decision made by the BBC.

The claimant subsequently appealed to the Information Tribunal, who rejected the decision of the Commissioner and found in favour of the claimant. Having set out a three-limb definition of ‘journalism’, the Tribunal concluded that the correct approach when determining whether the information was ‘held for purposes other than those of journalism’, was to assess the dominant purpose for which the information was held.

Having adopted this approach, the Tribunal applied a linear review of what the dominant purpose of the report had been throughout its history. In this case, whilst the Balen Report may have originally been intended to be ‘primarily an output review intended to assure and enhance quality’, it had subsequently been referred to the BBC’s Journalism Board and consequently been elevated to ‘formal report’ status, pertaining to ‘wider purposes of strategic policy and resource allocation, which lie outside the scope of the [Schedule 1] derogation’. According to the Tribunal, this elevation was sufficient to render the dominant purpose outside the ambit of what they considered to be ‘functional journalism’. As a result, by the time the claimant made his application under the Act in early 2005, the dominant purpose of the Balen Report was no longer sufficient to take it outside the scope of the Act.

It was consequently the turn of the BBC to appeal, this time against the decision of the Tribunal. Rejecting the decision of the Tribunal and restoring that of the Commissioner, Irwin J in the High Court ruled in favour of the BBC. Dismissing both the Tribunal’s dominant purpose approach and the claimant’s suggestion that the exception ought only to apply where journalism was the ‘exclusive purpose’, Irwin J ruled that the Tribunal had relied too heavily on what was an overly narrow definition of ‘functional journalism’. He adopted the broader approach advocated by the BBC and ruled that, providing that a journalism was one of the purposes for the report, that would be adequate to take it outside the scope of the Act.

The claimant appealed once again, the case now coming before the Master of the Rolls (alongside Moses and Munby LJJ) in the Court of Appeal. Delivering the verdict in favour of the BBC, Lord Neuberger found himself largely in agreement with Irwin J of the High Court. He too rejected the compromise solution of identifying a dominant purpose, suggesting that such an assessment would be too subjective and uncertain. Instead, the Court preferred the approach promulgated by the High Court, stating that as long as there was a journalistic purpose- irrespective of how prominent that purpose might be deemed to be in comparison to any other- then that would be sufficient to bring the information outside the scope of the Act.

Issues before the Supreme Court

The issue before the Supreme Court is therefore the correct construction of the provision in Sch 1 and the way in which this test ought to be applied in practice. In making this decision, they have several different approaches from which to choose:

– The restrictive approach: the information must be held exclusively for the purposes of journalism (the approach forwarded by the claimant);

– The broader approach: the information need only be held for a journalistic purpose, notwithstanding any other purposes which may also be applicable (the approach forwarded by the BBC); or

– The halfway approach: the dominant purpose of the information must be for journalism.

Although the Information Tribunal opted for the more subjective halfway approach, this was resoundingly rejected by both the High Court and the Court of Appeal, both of which advocated the broader approach. It is easy to see why. The broader approach represents a pragmatic solution to what must be an inherently ambiguous examination of different purposes, and is perhaps the only way in which this assessment can be carried out fairly and consistently. But whether the Supreme Court will endorse this approach, an approach adopted by all but one of the courts that has gone before it, remains to be seen.