British Broadcasting Corporation v The Information Commissioner

This case is an appeal on behalf of the British Broadcasting Corporation [“the BBC”] against the decision of the Information Tribunal [“the Tribunal”] promulgated on 7 November 2008, on a preliminary issue, namely whether the information requested in four consolidated appeals, was information to which the Freedom of Information Act 200 [“the Act”] applied. The hearing before me immediately followed that in BBC v Steven SugarandAnother CO/7618/2006, [“the Sugar case”] in which similar, although not identical, issues arose, and in which the BBC and the Information Commissioner [“the Commissioner”] were represented by the same counsel. Where the same issues arise in these two cases, my judgments will be expressed in identical or very similar terms.

Central to the decision in each of these cases is the question whether the information requested was held, at the time it was requested, ‘…for purposes other than those of journalism, art or literature’ within the meaning of that phrase in Part VI of Schedule 1 to the Act. By section 7(1) of the Act, the BBC, is ‘a public authority listed in Schedule 1 only in relation to information of a specified description’, and therefore ‘..nothing in Parts I to V of this Act applies to any other information held by the authority.’

In one respect, this case took a slightly unusual turn, which it is probably helpful to record now. Historically, the BBC made the concession in submissions to the Commissioner, before the Tribunal, in the Sugar case and in these proceedings, that the test under the Schedule required qualification by necessary implication, by inserting the adverb ‘predominantly’ before the phrase ‘for purposes other than those of journalism, art or literature’.

The hearing before the Tribunal was essentially conducted on that basis, although as I touch on below, a number of other phrases and concepts were allowed to come into play in the course of the decision by the Commissioner and the Tribunal proceedings. The same observations apply to the Sugar case. For the great part of these proceedings before me, despite some gentle questioning from the Bench, submissions continued on the basis of that concession. However, at what would otherwise have been the close of submissions in this case, I adjourned the case and asked both parties to address the question of the supposed ‘predominance’ test in further submissions, both in writing and orally.

I did so for a number of reasons. Principally, I felt unable to be confident that the effect of the historic concession by the BBC truly represented the law. This test applies to other bodies than the BBC. It is also the basis of the jurisdiction under the Act. The meaning of the test has been the subject of no previous authority, the only reference being the observations of Mr Justice Davis set out below. I am grateful to all counsel that they responded by making further submissions, and in such a helpful fashion.

The Statutory Scheme

“1.

General right of access to information held by public authorities

(1)

Any person making a request for information to a public authority is entitled:

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.

………

3.

Public authorities

(1)

In this Act “public authority” means:

(a)

subject to section 4(4), any body which, any other person who, or the holder of any office which—

(i)

is listed in Schedule 1

…………….

7.

Public authorities to which Act has limited application

(1)

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

(2)

An order under section 4(1) may, in adding an entry to Schedule 1, list the public authority only in relation to information of a specified description.

(3)

The [Secretary of State] may by order amend Schedule 1—

(a)

by limiting to information of a specified description the entry relating to any public authority, or

(b)

by removing or amending any limitation to information of a specified description which is for the time being contained in any entry………………

36.

Prejudice to effective conduct of public affairs

(1)

This section applies to ---

……………………

(b)

information which is held by any other public authority.

(2)

Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act-----

……………………

(b)

would, or would be likely to, inhibit—

(i)

the free and frank provision of advice, or

(ii)

the free and frank exchange of views for the purposes of deliberation, or

(c)

would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

……………………..

(5)

In subsections (2) and (3) “qualified person”----

………………………..

(o)

in relation to information held by any public authority not falling within any of paragraphs (a) to (n), means---

……………………

(ii)

the public authority, if authorised for the purposes of this section by a Minister of the Crown, or

(iii)

any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown.

43.

Commercial interests

………

(2)

Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

(3)

The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1) (a) would, or would be likely to, prejudice the interests mentioned in subsection (2).

……………………….

50.

Application for decision by Commissioner

(1)

Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part 1.

…………………

(4)

Where the Commissioner decides that a public authority---

(a)

has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b)

has failed to comply with any of the requirements of sections 11 and 17, the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.

(5)

A decision notice must contain particulars of the right of appeal conferred by section 57.

58.

Determination of appeals

(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner, and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

………………………………

59.

Appeals from decision of Tribunal

Any party to an appeal to the Tribunal under section 57 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be—

(a)

the High Court of Justice in England if the address of the public authority is in England or Wales

…………………….

Schedule 1 Part VI

Other Public Bodies and Offices: General

……………..

The Bank of England, in respect of information held for purposes other than those of its functions with respect to—

(a)

monetary policy,

(b)

financial operations intended to support financial institutions for the purposes of maintaining stability, and

(c)

the provision of private banking services and related services.

…………………

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

…………………….

The Channel Four Television Corporation, in respect of information held for purposes other than those of journalism, art or literature.

……………………..

The Competition Commission, in relation to information held by it otherwise than as a tribunal ……………………

The Gaelic Media Service, in respect of information held for purposes other than those of journalism, art or literature……………………

Sianel Pedwar Cymru, in respect of information held for purposes other than those of journalism, art or literature…………………….

The Traffic Commissioners, in respect of information held by them otherwise than as a tribunal…………….

The verderers of the New Forest, in respect of information held by them otherwise than as a tribunal……………………..”

On 21 January 2005 Mr David Gordon (Belfast Telegraph Newsroom) submitted a request to the BBC for the following information:

“1.

What is the annual gross salary paid by the BBC to each of the following George Jones, Stephen Nolan, Hugo Duncan, Gerry Anderson, John Daly, David Dunseith, Donna Traynor, Noel Thompson, Conor Bradford and Seamus McKee?

2.

How much did the BBC pay Straighforward Productions last year and what programmes did this relate to?

3.

What was BBC Newsline’s annual budget for outside broadcasts in each of the last five years?

4.

How many individual foreign trips have been made by personnel working for BBC NI Spotlight programme in the past three years?

5.

What has been the total cost of BBC NI Spotlight programmes involving overseas travel in the past three years?

6.

What has been the single most expensive BBC NI Spotlight programme involving foreign travel in the past three years?”

(“The Gordon Request”)

On 28 February 2006 Mr Jamie Jackson (The Observer) submitted a request to the BBC for the following information:

“how much the BBC paid for the rights and to cover the recent winter Olympics in Turin Italy”

(“the Jackson Request”)

On 28 March 2006 Mr Arthur Trice submitted a request to the BBC for the following information:

“In respect of your successful soap Eastenders:

[........]

4.

Total annual staff costs (performs, writers and production staff) of the programme.

5.

[….] the range of contract values (excluding extras) from minimum to maximum.”

(“the Trice Request”)

On 31 May 2006 Mr Miles Goslett (The Evening Standard) submitted a request to the BBC for the following information:

“1.

What is the budget for the current series of Top Gear on BBC2? (Please specify whether this figure includes presenters’ fees.)

2.

What is the annual budget for EastEnders on BBC1? (Please specify whether this figure includes actors’ fees.)

3.

What is the annual budget of Newsnight on BBC2? (Please specify whether this figure includes presenters’ and journalists’ salaries.)”

(“The Goslett Request”)

In each case, the BBC declined to provide the information requested on the basis that it was held (predominantly) for the purposes of journalism, art or literature. Each of the requesters proceeded to complain to the Information Commissioner that, amongst other matters, the BBC had been wrong to refuse to provide the information on this basis.

In each case, the Commissioner held that the information requested was held predominantly for purposes other than those of journalism, art or literature and that the Act therefore applied. He proceeded to consider whether the information was nevertheless exempt from disclosure there under, but determined that it was not (save for two parts of the Gordon Request). He therefore issued Decision Notices in each of the requests requiring the BBC to disclose the remaining information to the respective requesters.

The BBC appealed to the Tribunal against those Decision Notices pursuant to section 57 of the Act. None of the four complainants chose to be joined to the appeals or otherwise sought to uphold the Commissioner’s determinations. As far as the Court is aware, they have played no part in the proceedings since then.

Following the BBC’s application, the Tribunal directed that the four appeals be consolidated and that the issue as to whether the information requested in each case was held for purposes other than those of journalism, art or literature within the meaning of Part VI of Schedule 1 of the Act should be dealt with as a preliminary issue.

The Tribunal heard evidence on the preliminary issue from twelve witnesses from the BBC, and submissions on behalf of the BBC and the Commissioner, between 6^th and 8th October 2008. There was no evidence from any other witness. By a decision promulgated on 7 November 2008, the Tribunal concluded that, with one exception (point 1 of the Gordon request), the information requested washeld predominantly for purposes other than those of journalism, art or literature, within the meaning of Part VI of Schedule 1 to the Act, and accordingly the Act applied.

This statutory appeal was brought before me under section 59 of the Act. The Tribunal’s consideration of the issue of whether, on the basis that the Act applies to the requested information, the information is nevertheless exempt from disclosure, has been stayed pending resolution of this appeal.

The procedural history of the Sugar case is dealt with in my judgment in that case, and it is not necessary to make reference to it here, save to observe that the jurisdictional question decided by the House of Lords in that case of course applies to these cases: see British Broadcasting Corporation v Sugar and Another [2009] 1 WLR 430, UKHL 9. There is however no guidance in the speeches in the House of Lords as to the meaning of the key definition in the Schedule, with which these cases are concerned.

Since part of the BBC’s complaint really lies in the suggestion that the Tribunal were over-reliant on the approach of the Commissioner in these cases, it will be helpful to summarise the Commissioner’s decisions.A subsidiary complaint of the BBC is that the Commissioner, and indeed others, in speaking of the test in the Schedule as a ‘derogation’ from the Act, have fallen into a use of language which is inappropriate, since it implies a default position of disclosure, which is not part of the law. I note that contention, and recite the language used by the Commissioner.

On 30 January 2008 the Commissioner gave notice of his decision in the “Jackson” request. After setting out the history and the facts, the Commissioner went on to say:

“In order to determine the purpose for which information is held, the Commissioner will apply a dominant purpose test. This means that where information is held for a number of purposes he will weigh these purposes against each other to determine the dominant purpose for which that information is held…….In this case the requested information that the BBC believes is covered by the derogation is the total cost to the BBC of covering the Turin Winter Olympics including both rights costs and production costs.”

The Commissioner went on to recite his reasoning as follows:

“17.

In the Commissioner’s view the purpose of the derogation is to protect journalistic, artistic and literary integrity and to preserve a “creative space” in which programme makers can continue their core activities free from outside interference…

19.

…The Commissioner’s view is that the requested information is also held by the BBC for operational purposes in addition to being held for journalistic, literary and artistic purposes. The Commissioner believes that financial information serves a number of direct purposes; for example, it is used to budget, monitor expenditure, identify opportunities to improve efficiency and to comply with legal obligations……

24.

…..The Commissioner believes that, as a result of both [of its] Charters the BBC holds financial information to enable:

(i)

The Governors (and now BBC Trust) to perform their role as “guardians” under the Royal Charter by assessing the performance of the executive board; and,

(ii)

the Executive Board to manage the BBC’s financial and operational affairs in a manner best designed to ensure value for money.

25.

Rights costs and production costs constitute financial information and therefore serve a number of purposes in addition to that accepted by both the BBC and the Commissioner, i.e. that it supports the creation of programme content.

26.

Where information is held for a number of purposes the Commissioner’s approach is to consider whether the dominant purpose for holding that information is a purpose specified in the Schedule 1 derogation.

27.

In this case the Commissioner considers that this information served the following purposes:

(i)

It supported the delivery of programme content.

(ii)

It enabled the BBC to monitor its expenditure against its agreed budget that year.

(iii)It enabled the BBC to predict with some certainty the future costs of producing programmes ...

(iv)

It contributed to meeting the BBC’s obligations to public annual accounts.

(vi)

It contributed to the ability of the Governors (now the BBC Trust) and the Executive Board to perform their respective functions and operational duties under the Royal Charter.

28.

The final factor which the BBC Commissioner has made in coming to a decision on whether the derogation applies is whether the decision on the cost of in-house programmes and the cost of acquiring the rights for the Turin Olympics constitute a creative decision.

29.

A creative decision would relate to the inception, planning and delivery of new content. For example, the decision to use presenter X instead of presenter Y would tend to be a creative decision, based on the reputation and standing of the entertainer in the industry, but the determination of the level of remuneration for presenter X or Y would not be categorised as a creative decision.

30.

As such, the Commissioner does not consider that the request and information constitutes a creative decision.

31.

After carefully balancing these competing purposes, the Commissioner finds the information about rights, costs and in-house production costs was, or was more likely to have been, held by the BBC for predominantly operational purposes (including financial management and administrative purposes) and not for journalism literature or art. As a result, Schedule 1 is not applicable in this case and the BBC is a public authority with regard to requested information.”

The Commissioner went on to decide against the BBC on the exemption issue. Since the Tribunal adjourned consideration of the exception issue within the Appeal to the Tribunal it is not necessary for me to consider the Commissioner’s reasoning on these points.

In relation to the “Gordon” request the Commissioner adopted a similar approach, applying a “dominant purpose” test. In relation to this request, the information that the BBC submitted was covered by the “derogation” is the “information pertaining to talent costs and in-house programme costs”. The BBC cited three sources in support of their position. Firstly, they relied on the Commissioner’s view in his provisional decision in the case of Sugar –v- Information Commissioner to the effect that this kind of budgetary information deals with the “sustenance ….of the creative journalistic purpose that the designation is meant to protect”. Secondly, they relied upon the evidence given by Mr Richard Sambrook, Director of News at the BBC in relation to the Sugar appeal to the Tribunal, to the effect that “questions about how you make (various) selections or the resources that are available to make selections, might be characterised on the one hand as management, but they are absolutely core to journalism and determine both the quality, nature and character of journalism”. Thirdly, they relied on a letter from the Home Office to the Department for Culture, Media and Sport dated 13 January 2000, which stated that the intention of Government when including the public service broadcasters in the Bill “does not place them at a commercial disadvantage to their commercial rivals. The Bill therefore provides that the inclusion of the public service broadcasters does not relate to information held for journalistic, artistic or literary purposes”.

The Commissioner’s view was that whilst accepting that the requested information supported the creation of programme content, consistent with his view on the “Jackson” request, the Commissioner concluded that this information was held for operational purposes in addition to journalistic literary and artistic purposes. He concluded that the information supported Charter obligations, and that the in-house programme costs and talent costs information served virtually identical purposes to those set out in the “Jackson” report, with the sole alteration that under purpose (iii) the Commissioner felt this enabled the BBC “to predict with some certainty the future costs of engaging talent” rather than of “producing programmes in-house”. The Commissioner found that the requested information was held by the BBC for predominantly operational purposes.

In relation to the “Goslett” request, the Commissioner recited the same evidential support deployed by the BBC in favour of its opposition to disclosure. The findings as to the purposes for which the information was held followed very closely the two earlier decisions in this appeal.

Much of the “Goslett” request turned on exemptions, and the question of prejudice, which does not arise in the appeal. However the Commissioner’s decision in relation to the principal question of disclosability under the Act was expressed to derive from very similar conclusions as those in the previous requests. The Commissioner decided that the requested information covered by the scope of both requests was held by the BBC for purposes other than those of journalism art and literature. The Commissioner was satisfied that the request of information was held by the BBC for multiple purposes, that

“…the ultimate purpose of derogation is to protect journalistic, artistic and literary integrity by carving out a creative and journalistic space for programme makers to produce programmes free from the interference and scrutiny of the public”.

The Commissioner concluded that he did not

“..believe that information relating to the costs of in-house productions possesses enough journalistic application to enable it to be held for a dominant journalistic or similar purpose. Rather, the Commissioner considers the requested information to be central to the operational heart of the BBC’s policies, strategies and allocation of resources and the prejudicial consequences of not holding this information support the view that the requested information is held for the dominant purpose of the BBC operations rather than one of the purposes of Schedule 1”.

In respect of the “Trice” request much the same debate is recited in the decision letter. Here the Commissioner concluded that the:

“ …..annual staff costs and contract value maxima and minima serve the following purposes:

(i)

they supported the delivery of programme content;

(ii)

They enabled the BBC to monitor its expenditure against its agreed budget for that year.

(iii)

They enabled the BBC to predict with some certainty the future costs of sending staff overseas.

(iv)

They contributed to meeting the BBC’s obligations to publish annual accounts.

(v)

They contributed to ability of the Governors (now the BBC Trust) and the Executive Board to perform their prospective functions and operational duties under the Royal Charter.”

As a final step, the Commissioner recited the fact that he had “…weighed in coming to decision on whether the derogation applies...whether the information held constitutes part of the creative process”. In this context the Commissioner concluded that the decision to engage certain staff would constitute a creative decision however the total annual staffing costs and range of contract values would not. After balancing these competing purposes, the Commissioner found that the requested information was likely to have been held for predominantly operational purposes.

The Tribunal heard evidence over three days in October 2008, before promulgating its decision on 7 November 2008. The Tribunal heard evidence relevant to all the appeals from a number of witnesses, of which two of the most prominent were Caroline Thompson, the Chief Operating Officer of the BBC, and Richard Payne, Head of Finance Operations in BBC Finance. Ms Thompson gave evidence about the overall structure of the BBC, a picture which was rendered into a BBC organisational chart placed before the Tribunal. An important part of her evidence bore on the financial information which was the subject of the appeals and where it was held within the organisation. She said this:

“Except for the item which I mention below I would not see any of this information as a matter of course as a member of the Executive Board and the Finance Committee other than in cases of exceptional expenditure. I have been advised by ……..the Head of Financial and Commercial Strategy in the BBC Finance Department ……that…. it appears that none of the information was considered by the Finance Committee”

The exceptional item mentioned by Ms Thompson was the set of financial information concerning the bid for the Turin Winter Olympics, which was placed before the Finance Committee with a view to the grant of a mandate to the Director of Sports Rights to bid for the rights. Ms Thompson also made the point that this information was extremely commercially sensitive and thus should be the subject of an exemption.

This broad picture was supported by others and contradicted by no one. Yet the Tribunal rejected the effect of much of the evidence. The point forms a significant part of the BBC’s case to the Tribunal and their argument before me, and so I will give a reasonably full account of the evidence.

With the limited exception of the package of figures for the Turin Winter Olympics bid, none of the requested information was ever “held” within the BBC above the “divisional” level of the organisation. The organisation up to that level includes all of the programme making and direct support functions, including all of the people who are engaged in hands-on work within journalism art or literature: in other words this level of the organisation includes all the programme makers. However, it also includes operational management to quite a high level, for example including the Director of Nations and Regions and the Controller of BBC Northern Ireland. Within the Sports Division is included Richard Jones, the Finance Partner, David Gordon the Head of Major Events, and David Murray, Senior Rights Executive. The News Division includes Mr Peter Horrocks, the Head of Multi Media News. A number of these gave evidence before the Tribunal. Thus the overall picture was that the requested information was held at a level within the BBC which comprised all of the front line programme making, but also comprised quite senior operational management. The evidence went on to show that this financial information, in the form in which it was requested, was never transmitted to, and never held by, the BBC at group level or above.

The BBC at group level and above deals with the presentation of organisational or corporate accounts and with ensuring compliance with the BBC’s obligations under its Royal Charters. Simply put, the BBC’s point is that with one or two possible exceptions the information requested was not held at a level where overall accounting, any large scale budgeting, or compliance with the Charter obligations are dealt with. At that level within the Corporation, only aggregated financial information is held.

Richard Payne is the Head of Finance Operations in BBC Finance. His evidence described the broad structure I have outlined above. In his witness statement and his live evidence, he confirmed that in respect of a given production the production cost and programme budget were held within a project costing system accessible to the production management team who use these costings for monitoring ongoing day to day production costs and taking continuing decisions about what can and cannot be done within the given programme or slate of programmes. Mr Payne confirmed that the divisional accounting teams extract the figures from the project costing system, known by the acronym BPS, and generate consolidated financial statements which are presented every month to the relevant divisional management board. The Divisional Accounting Teams do not use the information for any other purpose. Whilst of course he confirmed in evidence that the production costs produced have as part of their eventual purpose the creation of accurate aggregated accounts, Mr Payne confirmed that no figures of this nature are ever held as separate figures above the divisional level.

Mr Payne described in his witness statement the financial systems structure within the BBC. In the middle of this structure is the finance partner, located at the level of a “profit centre”, sitting below the divisional accounting team. Mr Payne confirmed that the finance partner “is a finance role but it is embedded with the division, so they are working in partnership with the division….” He confirmed his view that you cannot divorce finance from creative decision making. In argument, Counsel for the Commissioner, both before the Tribunal and before me, argued that this evidence was in fact a concession that the finance partner was principally a financial role whose occupant was “keeping the BBC within budget”.

Claire Evans, Head of Operations and Business Affairs for Commissioning in the Vision Group of the BBC characterised this kind of financial information as being held in order to take “decisions as how to allocate a fixed resource ……. Part of the licence fee in the creation of BBC programmes” which was “predominantly and overridingly one of creative judgement”. The witness sought to distinguish decision-making on financial questions within the BBC from similar decisions in commercial organisations, because of the essential context of the overall financing and structure of the corporation. In her witness statement she said that:

“the commissioning process is the process by which financial resources within a fixed allocation of resources (i.e. the licence fee) are allocated between programmes. This is a “top-down” decision to allocate financial resources to each channel and then to each genre within the channels. The BBC’s income is fixed as a result of the licence fee settlement which fixes its income over a six year period. As such there is no “bottom-up” budgeting process in the financial sense that one would see in an income-driven business, whereby budgeting is the first step in the process to estimate a company’s financial profit. Rather the fixing of the budgets for programmes forms part of the creative and editorial process. Budgets allocated to previous series – either of the same or similar programmes – are a useful shorthand for discussing the editorial specification of programmes currently under discussion or in the progress of being commissioned. That is the main use for previous budget information.”

Evidence with a similar import was given by Jane Tranter, Controller of BBC Fiction. She was critical of the Commissioner’s decision when formulating her witness statement to the Tribunal, suggesting that the decision:

“greatly over-simplifies the way in which financial information about programmes is used and held by the BBC.”

In her view, the information was much more closely related to creative decision-making about programmes than the Commissioner’s decision suggested. She too distinguished between programme-related information and the larger budgetary questions handled above the divisional level within the organisation. She also confirmed that because of the nature of the financial structure of the organisation, if a production went massively over budget, that additional cost cannot be passed on to any customer, or indeed transferred out of the division. Thus if production costs go over budget, that excessive cost is absorbed within (say) the budget of the drama department within the vision group. Hence she confirmed that choices about spending on particular programmes or productions have an immediate effect on other creative decisions. Thus at the level of the financial information requested in these cases, financial and production decisions are very closely related. She gave an illustration directly relevant to the “Goslett” request. When it was decided for editorial reasons to change the format of “Top Gear” so that it became primarily an entertainment programme rather than a consumer programme, this increased the production costs to an important degree. That decision could only be taken at the same time as a sacrifice of spend elsewhere in the relevant divisional budget, meaning there was less to be spent on other entertainment shows.

Peter Horrocks, Head of Multi Media News confirmed the same basic structure within the news and current affairs directorate. In his statement he explained that the:

“Annual budget for all news programmes set by the Director of News after discussion with her management team, Newsboard.”

The overall news budget and the budget for various constituent programmes within the division was drawn on the previous year’s budget and represented a competition for resources from within that fixed overall pot. Mr Horrocks was therefore making a very similar point in the news context to those made by his colleagues.

Derek O’Gara, Finance Director of BBC Vision, set out in his written evidence his view that it was impossible to divorce his finance role from the creative or editorial remit of BBC vision confirming that even his job was not “an exclusively ……narrow financial role”. Pressed on this point in cross-examination, he sought to distinguish his current senior position in that respect from more junior jobs he had occupied, where he was engaged in aggregating divisional or sub-divisional financial information to produce global accounts, a role in which his accountancy expertise was essentially merely financial and not tied in with editorial or creative decisions.

The largest item in financial terms which surfaces in any of these requests is the costs associated with the bid to broadcast the Turin Winter Olympics. This was dealt with in the evidence of a number of the witnesses. Dominic Coles, Chief Operating Officer for BBC Journalism, News, Sport and the Nations and Regions provided a witness statement which was admitted before the Tribunal. He confirmed that the “sports’ rights budget is a finite one” and the decision even about a bid on this scale represented a decision about what to cover editorially and how to cover it. The decision to bid for the rights was not separate from the rights’ costs, since the figures had to be included in the bid. He regarded the bid as a creative decision: a “costed choice”, with particular potential audiences in mind. He confirmed that:

“the cost of the programming is driven by the potential cost of the rights and an editorial decision is taken by the Director of Sports and by me as to how much to spend in respect of particular sports rights within the sports rights budget.”

Even given the scale of this particular bid and the fact that it required approval at higher than divisional level (since it had to go as a separate item for approval to the Finance Committee) the costs thereafter were not held in isolation, but were for all accounting purposes included or aggregated in the total figures for the relevant department. David Gordon, Head of Major Events for BBC Sport confirmed this picture, describing in his witness statement how the pitch for an event such as this, being part of a fixed budget, followed a period of two years of discussion, including “a host of editorial decisions about how the event will be presented to the viewer and produced”. Examples of the interplay between financial considerations and editorial decision would be the location of presentation: should it be in Italy? Should it come simply from Turin or from two centres in Italy? All of these editorial decisions had financial implications and had to be seen beside the decision on how much to bid. David Murray and Richard Jones gave essentially supporting evidence in respect of the sports area in general and the Turin bid in particular.

In relation to the “Gordon” request, concerning talent and production costs within Northern Ireland, a similar picture was presented by all the witnesses. Peter Johnston, Controller of Northern Ireland, confirmed that he would not see the information which was the subject of these requests, since the information would not be held at his level within the organisation. The only situation which he would see the cost, for example, of individual trips (Gordon Request iv) would be if there was a significant over-spend, and a disciplinary or management problem was thought to arise. Even then, if such an issue did arise, he would regard that as principally an issue of the management of journalism, with journalism as a dominant purpose.

Andrew Colman, Head of News and Current Affairs at BBC Northern Ireland, addressed directly the part of the Commissioner’s decision notice in relation to this request where, at paragraphs 32-34 of the Notice, the Commissioner set out the various purposes for which the information was held, as set out earlier in this judgment. He went on to say:

“……in my view, the latter five purposes could all be encompassed in the one purpose of prudent financial reporting. As far as I am concerned, there are two purposes for which the requested information concerning talent costs and production costs is held: (1)creative purposes and (2)financial reporting purposes……I have a sound understanding of how intertwined the costs are within the programme-making decisions. Not only are the costs of line items of a programme constantly balanced against the budget, but also after the programme is made, costs of previous years are often consulted to see why costs have increased or decreased particularly as the developments and technology advance. In the current financial climate …..it is my responsibility to bear budgets and costs in mind constantly to inform the creative process of decision-making. It is an intertwined decision-making process. I consider the creative purposes to be the dominant purpose, and financial reporting to be a subsidiary purpose, for which the requested information is held.”

Stephen Loughrey, the Director of Nations and Regions, confirmed that in his position in the BBC he would only see aggregate or global financial information. His evidence was consistent with that of the witnesses already summarised and confirmed that it was his view that

“when an editor overseas the production of a programme, there is a constant dialogue or reconciliation between editorial ambition and resources. You cannot split resource allocation from editorial judgments as they are part of one fluid process and there is a constant dialogue between the two.”

I note that Mr Colman and Mr Johnston gave evidence as to the particular difficulties in relation to talent cost, commissioning and the use of prominent reporters within Northern Ireland. These points included, but were not confined to, the evidence that Northern Ireland represented a relatively small economy with limited outlets for key talent. In the course of this part of the case Mr Loughrey stated:

“We could be in a position of frankly exploiting talent and paying minimum fees because they have so few choices of employment. We try very hard not to exploit individuals on that basis. We try to develop their careers and give them a reason for remaining within the journalism family in the province.”

With the exception of the first part of the “Gordon” request relating to annual gross salary paid by the BBC to the named individuals, the Tribunal dismissed the BBC’s appeal from the Commissioner’s decision. In giving its reasons, the Tribunal began by summarising the procedural history in the BBC –v- Sugar case so far as it was known to them and proceeded then to quote extensive passages from paragraphs 55,57,58,61 and 62 of the decision of Mr Justice Davis in Sugar -v- BBC and Information Commissioner [2007] 1WLR 2583. In paragraph 19 of their reasons, the Tribunal elicited the main propositions that they considered followed from the judgment of Mr Justice Davis and went on to add the following:

“(vii)

In determining whether information is “held for purposes other than those of journalism …..” it may be relevant to consider factors such as the relationship between the information and Programme Content; the Creative Journalistic Purpose; the origins of the information and the primary constituency to benefit from it (paragraph 61); and

(viii)

Where information is held for more than one purpose or there are mixed purposes, it is a appropriate to apply the dominant purpose test (and it may even be that some lesser degree of journalistic purpose, provided that it was significant purpose, might suffice) (paragraph 62) (iii)

Paragraph 20 “The Creative Journalistic Purpose” had been defined by the Information Commissioner as being “to protect journalistic, artistic and literary integrity by carving out a creative and journalistic space for programme makers to produce programmes free from the interference and scrutiny of the public” “Programme Content” had been defined by him “to include all types of output which the BBC produces and broadcasts.”

The Tribunal noted the historic analysis set out in paragraphs 18 - 35 of the decision of Davis J which it considered “provides a definitive background note for all subsequent actions that have and will refer to this issue”. The Tribunal repeated their view as expressed in the original Sugar decision that the material relevant to the Act to be found in Hansard “did not satisfy the criteria set out in Pepper –v- Hart”and as a consequence, they declined to take Hansard references into account.

The Tribunal then summarised the evidence and arguments presented to them before expressing the reasons for the decision. They began the reasons as follows:

“79.

The Tribunal makes its findings on the basis that the derogation should be interpreted in accordance with its plain and ordinary meaning in the light of its two-fold legislative purpose. The first part of that purpose is in relation to the protection of freedom of expression and the rights of the media under Article 10 of the European Convention on Human Rights and the second part was to ensure that [the Act] did not place public section broadcasters at an unfair disadvantage to their commercial rivals.

80.

The purpose of the derogation is to protect journalistic, artistic and literary integrity and to preserve a “creative space” in which programme makers can continue their core activities free from outside interference……

83.

It was clear from the evidence presented by the BBC’s witnesses that its employees – without exception – believe that the ordinary meaning of “for the purposes of journalism art or literature” permeated all levels of programme making to the extent that the majority of the work of those witnesses – and their colleagues – was for the purposes of journalism, art or literature and therefore covered by the derogation.

84.

If taken at face value it would have the effect of excluding most of the BBC’s management information from the remit of [the Act].

85.

The Tribunal finds that the witness’s evidence was presented with an honest and genuine belief but with a degree of subjective bias that requires the Tribunal to stand back and assess more objectively the thrust of what was being said against the relative elements of the derogation.

86.

The Tribunal agreed with the Information Commissioner’s approach that, if such a very broad definition was intended, there would have been little point including the BBC in Schedule 1 Part VI of [the Act]. The BBC could have been omitted completely from the scope of the Act…..

88.

In all but one request the Tribunal has found that the Information Commissioners decisions - as set out in the relevant Decision Notices – were correct. They were (per Davis J at paragraph 59 of the Sugar [case]) decisions which are “lawful and rational…..properly open to him on the material before him”.

89.

The Commissioner has, in effect, developed what the Tribunal will refer to as a “cumulative predominant purpose” test he has measured the various purposes – including those relating to journalism, art and literature – for which the information was held. It is properly open to him to do this aggregation and balancing exercise in relation to each request as a test to see whether the derogation applies. He must do it, in fact, for such requests now and in the future.”

Having thus explained their approach, the Tribunal went on to give conclusions on the evidence. They accepted the Commissioner’s view that financial information can “reflect creative (or journalistic) decisions without itself being creative (or journalistic) in nature”, accepting for instance that the BBC programme coverage of the Turin Olympics was not a creative decision “in and of itself”, but the financial consequence of a large set of inter-connected creative decisions about the precise nature and form of the coverage. However, having accepted the inter-connected nature of the financial information and editorial decisions, and accepting that financial information assists programme commissioners and others to control their creative output, they applied the “cumulative predominant purpose” test to the “Jackson” request. They concluded that the information was held for journalistic, artistic and literary purposes, but in relation to both the bid and production costs, was held predominantly for operational purposes including budgeting, monitoring expenditure, identifying opportunities to improve efficiency, and to comply with the legal obligations under the Royal Charter.

They applied the same test to the “Gordon” request, but found that the annual gross salary paid to the named individuals fell within the “derogation”. Noting that all the individuals were journalists and/or broadcasters in Northern Ireland, they observed that in that context:

“ …….with a significantly smaller pool of professional talent ……the elements of engaging talent constitute a creative decision relating to journalism, art or literature which is predominant over the basic financial nature of the request.”

They continued in paragraph 98 to say:

“A decision on how much to pay talent is ultimately determined by an individual’s creative contribution. The operational purposes for which the financial information about these talent costs is held are not to the predominant reason for their existence.”

For those reasons, they substituted their own decision for that of the Commissioner. In respect of all the other items in the “Gordon” request, the Tribunal agreed with the Commissioner.

In respect of the “Goslett” request the Tribunal agreed with the Commissioner that the predominant purpose of the relevant items of information was operational:

“ ………including budgets, monitoring expenditure, identifying opportunities to improve efficiency and to comply with legal obligations – and outweighed the journalistic literary and artistic purposes contended in this appeal.”

They went on to observe that if the BBC did not hold this information, it would have a “prejudicial effect” on the ability of the Governors and Executive Board to fulfil their duties under the Charter and:

“If the BBC failed to hold information related to business costs that practice would be incompatible with the most basic business and accounting practice and would absolutely affect the administrative, business and financial operations of the BBC.”

Finally, in relation to the “Trice” requests, the Tribunal considered that the:

“Predominant purpose of those items …was for operational purposes and outweighed the journalistic, artistic or literary purposes. It was information used to budget, monitor expenditure, identify opportunities to improve efficiency and to comply with legal obligations.”

They continued that:

“The annual staff costs and contract value maxima and minima support the delivery of programme content, enable the BBC to monitor its expenditure against its agreed budget for the year, enable the BBC to predict with some certainty the future costs of sending staff overseas, contributes to meeting the BBC’s obligations to publish annual accounts and the ability of the BBC’s Governor (now the BBC Trust) and the Executive Board to perform their respective functions and operational duties under the Royal Charter. The total annual staffing costs and range of contract values were held for predominantly financial and administrative purposes and outweighed any creative purpose.”

In addition to the principal thrust of their decision and supporting reasons, the Tribunal dealt with two applications from the BBC to introduce additional material before them. One related to a letter from the Department of Constitutional Affairs of 9 September 2003, which was said to bear upon the mischief to be addressed in the legislation. The second was a decision of the Information Commissioner contained in a “closure letter” dated 27 October 2008. This contained a decision by the Commissioner that information requested as to the costs of the BBC coverage of the Madeleine McCann story was “derogated”, a decision which the BBC sought (and seeks) to argue is inconsistent with the decisions taken by the Commissioner in these cases. I will deal later in this judgment with these discrete points.

An appeal to the High Court from the Tribunal is on a “point of law” within the terms of Section 59 of the Act. All parties are agreed that to all intents and purposes the High Court treats an appeal from the Tribunal as if it were a judicial review.

The meaning of the definition in Schedule 1: ‘predominantly’ or not?

I have set out early in this judgment how this issue was brought to the surface.

One must start with the plain meaning of the words in the statute. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] 591 at 613G:

That passage was cited with approval more recently by Lord Nicholls of Birkenhead in his speech in R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2AC 349, at page 396F/G, where he said:

These corrective or admonitory remarks may be thought to gain rather than lose force from the fact that, in each of the cases from which I have quoted, Lord Reid and Lord Nicholls respectively acknowledged that assistance as to the meaning of statute may properly be found outside the mere reading of the words in the Act, for example by considering the mischief at which the Act in question was aimed. While that process is proper, the discipline of attending to the objective, reasonable meaning of the words used in the statute is to be reasserted: the second is the object of the first.

At an early stage in the proceedings, whilst appearing before the Commissioner in his case, Mr Sugar argued that the meaning of ‘…held for purposes other than journalism, art or literature’ was that, if a given piece of information was held to any extent for any purpose apart from journalism, art or literature, even if it was also held for one or more of the specified purposes, then it was caught by the Act, and should be disclosed, if not subject to an exemption. Whilst not arguing this before me, he reserved the right to argue for this interpretation, should his case go on appeal from the High Court in relation to the ‘journalism issue’. Given the process of interpretation on which I have embarked, it seems fair that I should consider that as a possible interpretation, acknowledging that it has not been positively argued in front of me. It seems to me a possible, but not natural or likely, reading of the words in the Schedule.

The consequence of that interpretation would be, subject no doubt to the principle of de minimis non curat lex, that where at the time of the request information was held to any extent for dual purposes, then it would always be disclosable. Thus if, say, the Turin Olympic bid information was held for creative purposes, but was also held, to more than a minimal extent, in order to help ensure that the BBC would satisfy its overall accounting obligations, or to inform decisions about management structures, it would have to be disclosed.

Before stating that their favoured interpretation of the test was that of the ‘predominant purpose’ for which the information was held, the BBC had suggested to the Commissioner that a possible reading of the relevant phrase was that information was disclosable if it was held for purposes ‘other than’ journalism, art or literature, meaning ‘exclusively for purposes other than’ journalism, art or literature.

In argument before me, the parties were somewhat resistant to the application here of the principle that the law will not take cognisance of insignificant things. However, their arguments against the application of this principle were really couched in terms of drafting. The BBC submitted that the implication of such a phrase as ‘save to an insignificant degree’ would not be sufficient and that in order to accommodate the principle in relation to this statutory test, it would be necessary to imply words into the Schedule so that it read: ‘..information held for purposes other than journalism, art or literature (save that information is not to be taken to be so held where it is held to a not insignificant extent for the purposes of journalism, art or literature)’. I reject these arguments. Firstly, drafting difficulty cannot abolish the application of a principle of law. Secondly, the drafting objection is not in truth to the application of the principle of de minimis, but to the fact that its application does not resolve the fundamental argument about the meaning of the test. The formulation proposed by the BBC sets out to resolve both.

In my view there are, as a matter of language, only two possible readings of the test in the Schedule. They are the interpretation originally proposed by Mr Sugar and that suggested but not argued by the BBC. The phrase ‘held for purposes other than’ can only mean ‘held for purposes apart from or in addition to’ or ‘held for purposes apart from and not including’. As a matter of language I favour the latter reading. The first reading brings the following proposition: information would be held ‘for purposes other than journalism, art or literature’, despite the fact that it was held for the purposes of journalism, art or literature.

With great respect to the Commissioner, the Tribunal and the parties, I cannot agree that the problem can be resolved by the ‘predominant purpose’ test. The language used by Parliament, in my view, simply does not mean that, and cannot really be made to mean that. Neither of the two possible readings of the key phrase mean that. None of the parties even submitted to me, as an interpretation of the language in the statute, that the objective meaning of the words in the Schedule was that disclosure should turn upon the predominant purpose for which the information was held. Once examined, all the arguments were to the effect that the ‘predominant purpose’ test was the best policy approach, most likely to address the mischief at which the Act was addressed, or would best serve what were advanced to be the presumed policy objectives of the legislation.

All counsel advanced arguments bearing on the mischief said to be addressed, or the policy said to lie behind, the legislation. Given the clear view I take on the meaning of the words in the legislation, I do not intend to address most of those arguments here.

The reading advanced by Mr Sugar before the Commissioner, even subject to the de minimis principle, would have the effect that a great deal of material would be disclosed. Information held for multiple purposes, but held other than to a minimal extent for any purpose outside journalism, art or literature, would be disclosed. The other reading would mean that much less material would be disclosed, and much more protected. It would mean that information held to any significant extent for the prescribed purposes would not be disclosable, whether or not the information was also held for other purposes. In relation to information held for more than one purpose, the readings are more or less diametrically opposed in their effects.

There are valid policy arguments to be deployed which would favour a test of ‘predominant purpose’. That test would be likely to have an effect on the proportion of information to be disclosed somewhere between outcomes of the two readings I have identified. But such arguments cannot justify the Commissioner, the Tribunal or this Court in departing from the language of the Act, and constructing a separate and different test, which cannot truly be construed from ‘the words Parliament used.’

The meaning of the phrase in the Schedule, variously called the ‘derogation’ or the ‘designation’, was not explored in the House of Lords, or indeed when the ‘jurisdiction issue’ of this case was decided in the Court of Appeal: see [2008] EWCA Civ 191. Nor have I been referred to any other authority in any other case, concerning this Schedule.

The only indication of judicial thinking as to the meaning of the key phrase comes from this case, from the judgment of Davis J in the Sugar case, at paragraph 62:

It will be remembered that Davis J had concluded that the Tribunal did not have jurisdiction to hear an appeal from the Commissioner, the point on which his judgment was reversed in the House of Lords. These remarks were made in the course of his judicial review then following, of the decision of the Commissioner. It is evident that he proceeded on the basis of the agreement of the parties as to the ‘dominant purpose’ test. It also seems clear that he disapproved of the analysis advanced by Mr Sugar, considering that it did not fit the language of the Schedule (and, as separate points, did not fit with the clear underlying purpose of the Act, and was virtually unworkable). Yet, his remarks, highlighted above, might also suggest Davis J had a degree of reservation on the fundamental point, and that if the matter had been argued before him, he might not necessarily have been prepared to accept that the ‘predominant purpose’ test was correct. However the matter was not argued in front of him.

During argument I was asked to consider the well-known decision of Waugh v British Railways Board [1980] AC 521. In that case the House of Lords concluded that a ‘dominant purpose’ test was the best method of resolving the competing principles that, on the one hand there should be full disclosure of relevant material in litigation, and on the other, there must be effective maintenance of legal professional privilege. This was advanced to support the suitability of the ‘dominant purpose’ test as an application of the Schedule. In my judgment, this is little to the point. The approach in Waugh would be highly relevant, although far from determinative, if I was seeking to balance competing policy considerations as to a procedural matter, without reference to a statutory formulation, where the common law could be developed untrammelled.

There must be a presumption that Parliament used the same words with consistent meaning throughout this Schedule. Thus if the parties were right, it would suggest that the ‘predominant purpose test’ would be the meaning of other instances where the words ‘held for purposes other than those of ’ are used. On this reading, the Bank of England would be obliged to disclose information affecting its functions with respect to monetary policy, to financial operations intended to support financial institutions for the purposes of maintaining stability and to the provision of private banking, provided that the information was held ‘predominantly’ for another purpose. That seems to me very unlikely to have been the intention of Parliament. On the contrary, it seems to me entirely likely that Parliament should intend that information would be non-disclosable if held by the Bank to any significant extent for purposes affecting the setting of monetary policy, or the support of financial institutions, or the provision of private banking services.

Equally, the reading advanced by the parties would mean that the Competition Commission, the Traffic Commissioners (and formerly the verderers of the New Forest) would be obliged to disclose information which was relevant to their functions as Tribunals, provided that the information was held predominantly for another purpose. That too would seem very unlikely, whereas a stipulation that information was non-disclosable, if held to any significant extent by a body acting as a Tribunal, would be what was expected.

My conclusion is that the words in the Schedule mean the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes. The words do not mean that the information is disclosable if it is held for purposes distinct from journalism, art or literature, whilst it is also held to any significant extent for those listed purposes. If the information is held for mixed purposes, including to any significant extent the purposes listed in the Schedule or one of them, then the information is not disclosable. The ‘predominant purpose’ test is not the law, but a construct, which is in my judgment inconsistent with either possible reading of the statutory language. For that reason, I find that the decision of the Tribunal was in error, and should not stand.

Both parties indicated that they would wish me to consider the Tribunal’s decisions on the basis that the “predominant purpose test” was the law and I am content to do so.

On the assumption that the ‘predominant purpose test’ represented the correct approach in law, a number of grounds of appeal were advanced by the BBC challenging the decisions in these cases. I will not deal at length with all of them.

The first ground was an attack upon the Tribunal’s legal approach based on the letter from the Department of Constitutional Affairs of 9 September 2003. I have already touched on this. It seems to me highly contentious to suggest that a private letter, even from a senior official, in the Department which sponsored a Bill, written some years after the event, can be sufficiently persuasive as to the correct meaning of the legislation, so that a refusal to consider the content could render a Tribunal decision unlawful. This would amount to the executive branch being empowered to say in private “we wanted it to mean this, so it means this” and creating persuasive authority thereby. The BBC seeks to rely on section 232 of Bennion on Statutory Interpretation 5^th Edition in support of this contention. It seems to me that the editors of Bennion do not support the argument, but rather suggest that public departmental statements as to the interpretation of statute are, or can be, persuasive authority in relation to ambiguities or doubtful meaning in statute. In part, this must surely derive from the intended public guidance to be gained from such official statements. Statutory guidelines, for example, often referred to in a Bill and published with commencement of an Act, represent a considered view from the promoting department, which must be presumed to follow careful deliberation carried out at the time of drafting and promoting the Bill. Parliament can be taken to indicate the significance of such guidelines where there is mention of them in an Act. Revenue circulars carry something of the same weight. Even where such public official statements arise, they are no more than ‘soft law’, see Lord Bingham in R (exp Munjaz) v Mersey Care NHS Trust [2005] UKHL 58. It seems to me that attack on the Tribunals decision leads nowhere.

Another ground was to suggest that the Tribunal misunderstood its role and approached its task as if performing a judicial review of the Commissioner’s decisions. I do not accept this. The Tribunal did make a comment in paragraph 88 of its decision to the effect that, save for the one point where they differed, the Commissioner’s decisions were “lawful and rational …properly open to him on the material before him”. That certainly is language indicating the approach proper to judicial review, and the Tribunal lifted the phrases from the judgement of Davis J. However it seems to me this was a comment rather than a statement of their own approach. The Tribunal must have been well aware of their own position and of the outstanding decision in the case of Guardian Newspapers & Brooke v Information Commissioner and the BBC EA/2006/0011 & 0013, where the approach of the Tribunal was fully analysed and distinguished from judicial review. Whilst the Tribunal undoubtedly relied heavily on the approach of the Commissioner, it seems to me they made their own decision. In an allied point, the BBC is also critical of the reasons given by the Tribunal, which the corporation describes as a repetition of the decisions and conclusions of the Commissioner. I likewise would reject this basis for overturning the Tribunal’s decision, and for the same reason.

The BBC criticises the application by the Tribunal of the dominant purpose test, in that they say the Tribunal refined it or qualified it, changing it into the ‘cumulative predominant purpose’ test. I do not accept that this rephrasing is a valid ground for challenge by the BBC, since the re-wording seems to me to be nothing more than a way of the Tribunal stating that they were looking at the purpose for which the information was held overall.

The BBC also criticises the different approach taken by the Tribunal to talent costs in Northern Ireland and talent costs elsewhere. In relation to this complaint also, I would not be critical of the Tribunal’s making such a distinction, particularly in the light of all the evidence they had at their disposal on this specific topic, since it may well be they saw special circumstances applying in Northern Ireland.

The Corporation also criticises the Tribunal on the ground that they failed to take into account the Commissioner’s ‘Closure Letter’ dated 27^th October 2008, which was issued by the Commissioner after the hearing in these cases, but before the decision was promulgated. The letter represents a decision by the Commissioner not to proceed with a complaint, following a refusal by the BBC to release information relating to the coverage of the story of Madeleine McCann, the little girl missing in Portugal. The BBC would wish to say that the approach taken there by the Commissioner is inconsistent with that taken in the instant cases, and should be considered by the Tribunal.

I see no procedural unfairness in the line adopted by the Tribunal. The Closure Letter is not binding on the Tribunal. It is not evidence of anything relating to the facts of the instant cases. It seems very doubtful that a relevant decision of the Commissioner would have to satisfy the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489, as Mr Hooper for the Commissioner suggested it would. If a relevant decision in another case is receivable by the Tribunal, as it should generally be, it must surely be as persuasive authority, persuasive or otherwise by the quality of its reasoning, and perhaps as demonstrating inconsistency, where that might be thought relevant. However, as I have already indicated, the Tribunal appears to me to have taken their own line in these appeals. The Tribunal must also be master of its own procedure, within any relevant rules and the limits of fairness. If such a decision from the Commissioner arises, after the Tribunal reaches a decision but before promulgation, it must be within the discretion of the Tribunal to refuse to re-open the argument.

Grounds 3 and 5 in the order advanced by the BBC, were that the Tribunal failed to make an adequate evaluation of the evidence, and that they wrongly criticised the witnesses for the BBC as having ‘a degree of subjective bias’ in their evidence linking the information requested to the purposes of journalism art of literature. It seems to me these grounds are closely related to each other, as they are also to Ground 7, the allegation that the Tribunal failed in fact to apply the dominant purpose test to the evidence. The nub of the criticism is that, without any contrary evidence, the Tribunal rejected the unanimous evidence of all the witnesses on this key point, on the basis of a subjective bias which they felt they had to correct, superimposing their own views, and without really applying the test to the facts.

In seeking to support the Tribunal’s conclusion, the Information Commissioner has relied on a number of authorities, where the courts have suggested that considerable deference should be paid to the conclusions of a specialist or expert Tribunal. Perhaps the high water mark of this consideration is to be found in the judgment of Lord Justice Mummery in paragraphs 93 – 96 of Yeboah-v-Crofton [2002] IRLR 634 where, inter alia specifically dealing with a perversity appeal from an Employment Tribunal, he said:

“Such an appeal ought only to succeed where an overwhelming case is made out at the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal have “grave doubts” about the decision of the Employment Tribunal, it must proceed with “great care”: British Telecommunications Plc –v-Sheridan [1990] IRLR 27 paragraph 34”

Essentially to underscore the same point, the Information Commissioner relies on the dicta of Lord Denning in Hollister –v- National Farmers Union [1979] ICR 542 at pages 552H – 553D.

The Commissioner notes that the Tribunal is set up under the Data Protection Act 1998 as a specialist tribunal, comprising a majority of members with particular experience which enables them to represent the interests both of those who make Freedom of Information Act requests and the public authorities which must respond to them. The Commissioner also emphasises the point that the Tribunal had the benefit of hearing oral evidence, whereas the High Court does not. A similar approach was adopted by Mr Justice Wyn Williams in Department for Business Enterprise and Regularity Reform –v- O’Brian and The Information Commissioner [2009] EWHC 164 (QB) – see paragraph 32 where he says:

“A court is usually slow to find that a specialist tribunal has failed to afford appropriate weight to factors relevant to its decision. In my judgment, that pragmatic approach should be applied in the context of a statutory appeal under FOIA certainly so far as issues arising under Section 35 are concerned.”

I accept the approach urged upon me by Counsel for the Information Commissioner with two qualifications. Firstly, this specific caution is confined to allegedly perverse findings of fact and does not extend to the law, a distinction which occasionally seemed to escape Mr Hooper in his submissions. Secondly, where the law and fact are related in a complex way, as I find they are in the application of the formulation of the Schedule to the Act, and where the application of the legal formulation is new and untested, it maybe appropriate to intervene in relation to findings somewhat more readily than in the context of a case such as Yeboah where both law and practice are well established.

By contrast with the Sugar case, the instant cases do turn rather more on a common question of fact. Moreover, there was little if any real distinction made between the facts arising in the different Requests which were addressed. In these cases, again by contrast with the Sugar case, there was little need for debate as to the meaning of journalism (or indeed art or literature). Since the information here is overwhelmingly financial, it is not really arguable that the information itself is journalistic, artistic or literary. The question is whether this financial information is held (for present purposes, predominantly) for the stipulated purposes.

It seems to me difficult to say that information held for ‘operational’ purposes is not held for the purposes of ‘journalism, art or literature’. It has not been contended that journalism, art and literature are not the product of the operations of the BBC. This does not mean that everything the BBC does is done for the purpose of journalism, art or literature. As Davis J said, that would be far too broad a reading. The cost of cleaning the BBC boardroom is only remotely linked to the product of the BBC, whereas the operating cost of creating an episode of a programme is much more closely linked to the designated purposes. Yet those costs could aptly be termed ‘operational’.

The BBC argues against the Tribunal’s supposition that, if the witnesses’ arguments were correct, the Act would barely apply to information held by the BBC, which cannot have been the intention of Parliament given the inclusion of the Corporation within the legislation. As Miss Carss-Frisk put it in written submissions, this ignores the fact as advanced by the BBC in the course of the Sugar appeal to the House of Lords that in 57% of requests received by the BBC in 2007/8, the Corporation took the view the information did fall within the scope of the Act.

I have already noted the central thrust of the evidence here. It is that the information requested was held at an operational or commissioning level, and that when it went above that level, it was held in an aggregated form; or to use other language, this information was not held at all at the higher levels in the form requested. The BBC accepts (and the witnesses accepted) that the information in the form requested is used at an operational or commissioning level to enable the BBC to monitor expenditure against a fixed budget, and to help predict future costs, or in other words as they would say directly for journalistic or creative purposes. It is said the Tribunal simply over-rode the closeness of purpose between the financial information held at this level and the editorial and creative choices being made. It is also said the Tribunal simply never grappled with the aggregation point.

I think there is force in these submissions. Having read and re-read the decision, it seems to me that the Tribunal did not simply disagree with the approach of the witnesses, which as a specialist Tribunal they were perhaps entitled to do, but in fact failed to deal with what the witnesses were saying. To start with, they did not find that the evidence as to the specific purposes, for which the witnesses said the information was held, was wrong. On the evidence before them, they hardly could. They did not find that the information was not held in the form requested, once it reached a level in the organisation where it was deployed for ‘strategic’ or overall accounting purposes, or for the purpose of conforming to charter obligations. Again, on the evidence before them, they hardly could, save perhaps in respect of the Turin Olympics bid, and there is no real distinction between the Tribunal’s approach to this request and the others.

A good test of the Tribunal’s approach is to look closely at their own conclusions in paragraph 99 of the reasons, which for convenience I repeat here:

“The annual staff costs and contract value maxima and minima support the delivery of programme content, enable the BBC to monitor its expenditure against its agreed budget for the year, enable the BBC to predict with some certainty the future costs of sending staff overseas, contributes to meeting the BBC’s obligations to publish annual accounts and the ability of the BBC’s Governor (now the BBC Trust) and the Executive Board to perform their respective functions and operational duties under the Royal Charter. The total annual staffing costs and range of contract values were held for predominantly financial and administrative purposes and outweighed any creative purpose.”

The ‘annual staff costs and contract value maxima and minima’, according to the evidence, would be held in separate places, and would indeed support the delivery of programme content, which would seem to me clearly to be information held for a creative or journalistic purpose. The evidence was that monitoring expenditure against the yearly budget would be done at an operational or programme making level. The information sought in the Gordon request, and in other requests, would have to be aggregated before ‘the BBC’ could monitor its expenditure for the year. In any event, the evidence was that the budgets were ‘top down’ budgets. They were fixed budgets. It is not clear on the evidence that the BBC as a whole did monitor expenditure against an overall corporation-wide budget, but if they did, it would be by reference to very heavily aggregated information. Predicting the cost of future programme production in house might be regarded as journalistic or creative, or more clearly financial in purpose: that might well depend on how specific on general was the prediction in question. However, then we have the conclusion that this information would ‘contribute to’ the BBC’s annual accounts and the ability of the Governors or Trust to meet their Charter obligations. The only way this can square with the evidence is if the ‘contribution’ made by the requested information is by way of its being aggregated, which in truth actually means that it becomes different information, held in a different form and in a different place within the organisation.

Moreover, on the evidence, in my judgment, information which comes to be aggregated continues to be held within the BBC at an operational level and for journalistic, literary or artistic purposes. Any judgement about the ‘predominant purpose’ would surely need to address which purpose was predominant: the information held at operational level in the form requested, or the information held in aggregated form for more general, ‘strategic’, or Charter purpose, at a higher level in the organisation.

Therefore, once more with respect, I differ from the Tribunal. It seems to me doubtful in this case that the Tribunal actually applied a test of “predominant” purpose. Regretfully, I conclude that they failed properly to grapple with the evidence presented to them on the key questions of fact and that their conclusions were flawed. Thus even applying the ‘predominant purpose’ test, I would quash their decisions on these requests for information.