British Broadcasting Corporation v Sugar & Anor

This case is an appeal on behalf of the British Broadcasting Corporation [“BBC”] against the decision of the Information Tribunal [“the Tribunal”] promulgated on 29 August 2006, on the issue as to whether the information requested in this case was information to which the Freedom of Information Act 2000 [“the Act”] applied. The hearing before me immediately preceded that in BBC –v- Information Commissioner CO/11726/2008 [“the Financial Information Case”] in which similar although not identical issues arose. In that case the BBC and the Information 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, these cases took a slightly unusual turn, which it is probably helpful to record now. Historically, the BBC has made the concession in submissions to the Commissioner, before the Tribunal, in the Financial InformationCase, 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, 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 Financial InformationCase. 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 the Financial Information Case I adjourned the case and asked all parties in both cases to address the question of the supposed ‘predominance’ test in further submissions, written and oral.

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……………………..”

From about the middle of 2003, the BBC coverage of Middle Eastern Affairs was under particularly close scrutiny from a variety of lobby groups. According to the agreed evidence of Mr Richard Sambrook, Director of News at the time, he decided that it would be useful to retain a senior journalist to engage with the lobby groups and to look at the question of the BBC’s coverage of the Middle East, and of Israeli and Palestinian affairs in particular. Mr Sambrook fixed upon Malcolm Balen to carry out this task. Mr Balen is a senior journalist with wide experience who had been editor of the ‘Nine O’Clock News’.

On 17 October 2003 Mr Balen undertook to work as the BBC’s “Middle East Consultant in news” for a year from 1 November 2003. His position was not a formal editorial position and he was to have no managerial responsibility and thus his post was “... configured as a senior editorial adviser”. This was an unusual appointment, something of an experiment.

For approximately the first four months of his appointment, Mr Balen delivered fortnightly or monthly reports to Mr Sambrook in the course of which he addressed some external complaints about the BBC’s coverage of the Middle East and to that end met widely with internal editors and journalists to discuss the corporation’s Middle Eastern coverage. From about February 2004, Mr Balen’s main focus became the production of a report which he worked on for approximately six months. When Mr Balen gave evidence to the Tribunal about this he told them:

“I was concerned in my report to do two things: one was to examine the pattern of the complaints against the BBC and, if you like, examine the coverage that I was reviewing through the filter of those complaints, to see whether I thought the complaints were justified or not, not individual complaints but the pattern of them. I was also examining over time a considerable amount of BBC output to see what it added up to over time, how those individual decisions, journalistic decisions, on a daily basis, what they amounted to in their totality.”

When Mr Balen was asked as to the purpose of the report he explained:

“To be honest, I did not really have an expectation… As far as I was concerned, I was writing this report for Richard and I did not know what was going to happen to it… He did not ask me for recommendations. I felt the natural conclusion of the report was that there should be a recommendation. I did not feel it was my place as somebody who had just come into the BBC on a one year contract to act as Senior Editorial Adviser. I did not feel it was my role to be didactic in what I was saying. They were just simply possibilities that he might wish to explore…”

Mr Sambrook received draft of the Balen report in June 2004, commenting to Mr Balen by email on 18 June that “your report is terrific”. On 5 July, a later draft was sent to Mr Byford then the Director of World Service. It seems clear that the report was completed at some point in July 2004, although Mr Balen’s witness statement does not put a precise date on this.

Although Mr Balen stated that he did not know precisely how the report would be used by Mr Sambrook, he was clear as to the nature and purpose of his paper:

“The purpose of my paper was, in my mind, very clear. I was preparing it in order to improve BBC journalism, identify where we were getting it right or wrong, irrespective of whether the complaints we were receiving. My role was to give Mr Sambrook my view as an experienced journalist and editor. The idea was that because I was not making programmes, I could stand back and look at what the BBC had been doing. … [Following wide research]…in the light of my findings I suggested how the quality of our journalistic output might be improved. The paper was to be an internal briefing document for Mr Sambrook. I decided that I would include some practical recommendations although I did not know whether he would want to use these – this would depend on his views of the report…My recommendations were simply my own personal view on how the BBC’s journalism could be improved.”

Those are extracts from paragraphs 14 – 17 of Mr Balen’s witness statement.

Following the resignation of the Chairman and the Director General of the BBC in January 2004, in the aftermath of the Hutton Report, the BBC embarked on a degree of reorganisation. Mr Byford had moved to be Deputy Director General in January 2004 and a new Director General, Mark Thompson, was appointed in June 2004. They were instrumental in the reorganisation. In August 2004, Mr Sambrook, the commissioner of the work by Mr Balen, moved to be Director of World Service and Global News and he was replaced by Helen Boaden as Director of News. Mr Balen began to report to her.

As part of that reorganisation, the BBC set up the Journalism Board. A witness Stephen Whittle, Controller of Editorial Policy, was a member of the new board and described its functions in his statement to the Tribunal as follows:

“Between us, we were responsible for setting the strategy and values, as well as overseeing journalism across all areas of the BBC’s output, including the UK-Wide television and radio services, news on line, national and regional news programmes, local radio, the world service and BBC world, the BBC’s international-facing commercial channels.”

Neither Mr Sugar nor the Commissioner have challenged that as an accurate description of the functions of the Journalism Board.

The Balen Report was considered by the Journalism Board at its meeting on 9 November 2004. As the Tribunal found, the email traffic from early November demonstrates that the report was common knowledge and in circulation amongst the Journalism Board members. In the course of his evidence, Mr Balen stated that his report went to the Journalism Board:

“As part of a wider strategy review of the Middle East from which several decisions flowed.”

He confirmed that he was subsequently requested to assist in implementing various recommendations made in his report following a meeting of the Board all of which “were directed towards improving the BBC’s journalism and programme content”.

This is consistent with the email sent by Mr Byford to Journalism Board members on 9 November 2004 in the following terms:

“Following our very good discussion at the Journalism Board today on our Middle East coverage and on Malcolm’s report …..we will now take forward a number of strands of work which we will then bring together for approval at the Journalism Board as soon as possible in the new year…..all these strands can be brought together in a paper “taking forward BBC coverage of the Middle East” in January/February, which should be set in the context of the Governor’s 2004/5 objective: “ensure the BBC meets the highest standards of independence, impartiality and honesty in its journalism and implements recommendations on training, editorial control and complaints handling.””

When Mr Balen was asked in evidence to summarise the initiative which stemmed from his report he summarised it as follows:

“…the establishing of the post of Middle East editor, reviewing the BBC’s analysis capability, developing a Key Facts Guide, auditing the use of on air Middle East experts and developing BBC training. I think those all have a journalistic imperative.”

Mr Balen agreed that the impartiality of the BBC’s coverage was something he was concerned with but did not accept that was the ‘prime aspect’ of his work. His work was ‘far more wide-ranging than that.’

In May 2005 the BBC announced the recruitment of a Middle East Editor, and Jeremy Bowen was appointed to this post in August 2005. Around June 2005, Mr Byford commissioned a news gathering strategy paper from Ms Boaden and Mr Sambrook. They used the Balen Report as a source, although they also had other inputs and looked at other events, particularly in Iraq.

In mid 2005 the BBC Board of Governors appointed Sir Quentin Thomas to conduct an external independent review of BBC reporting in the Middle East and the outcome of this was a published report, known as “The Thomas Report” in May 2006. In course of his work, Sir Quentin sought a copy of the Balen Report to assist his thinking. After some hesitation, a copy was provided to him on 28 November 2005 on terms of confidentiality, a stipulation which Sir Quentin and his Panel respected.

By letter dated 8 January 2005, Mr Steven Sugar formally requested disclosure of the Balen Report under the Act. By an email of 11 February 2005, the BBC declined to disclose the Report on the basis that the Act did not apply to it. That decision was upheld by the BBC on 16 March 2005 following an internal review, stating that the Report “…..directly impacts on the BBC’s reporting of crucial world events….” and relying on the fact that the Act was only applicable to information held for purposes other than journalism.

On 18 March 2005, Mr Sugar complained to the Information Commissioner about the BBC’s handling of his request. Following extensive correspondence between the parties, the Commissioner set out his provisional view on 24 October 2005, supporting the BBC’s position. That provisional view was confirmed by the Commissioner in a letter dated 2 December 2005, setting out the Commissioner’s final decision that the Report was held for the purpose of journalism and that the BBC had correctly applied Part 6 of Schedule 1 to the Act.

By letter dated 30 December 2005, Mr Sugar appealed to the Tribunal against the Commissioner’s determination. The Tribunal on 21 March 2006 directed that there should be a hearing of two preliminary issues: (1) whether the Tribunal had a jurisdiction to entertain the appeal and (2) assuming the Tribunal did have jurisdiction, whether the Balen Report was excluded from disclosure by the definition in the Schedule. These two issues have become known as “the Jurisdiction Issue” and “the Journalism Issue”.

On 14 June 2006, the Tribunal indicated that it had concluded it did have jurisdiction to hear Mr Sugar’s appeal, and reasons were given in a decision promulgated on 29 August 2006.

By a second decision promulgated on the same date and dealing with the “Journalism Issue”, the Tribunal concluded that the BBC was a public authority in relation to the Balen Report at the time of Mr Sugar’s request for disclosure and thus that the report was disclosable, reversing the position taken by the Commissioner.

The procedural history of the Jurisdiction Issue is set out in the speech of Lord Phillips of Worth Matravers in British Broadcasting Corporation –v- Sugar and Another [2009] UKHL 9 at paragraphs 2-4. The BBC appealed the Tribunal on the jurisdiction issue, first by way of statutory appeal (appropriate if the Tribunal had jurisdiction) and in the alternative by way of judicial review (appropriate if they did not). The BBC’s claims succeeded before Mr Justice Davis, see [2007] 1WLR 2583. He held that the Commissioner had determined that he had no jurisdiction and thus had made no decision that was susceptible to an appeal to the Tribunal.

Mr Sugar had anticipated the possibility of this result by making a cross-claim for judicial review, challenging the Commissioner’s decision on the journalism issue, and this was heard at the same time. This challenge failed, Davis J holding that the Commissioner was correct in finding that, for the purposes of Mr Sugar’s application to it, the BBC was not a public authority.

Mr Sugar appealed to the Court of Appeal on the jurisdiction issue. His appeal failed. In the leading judgment, Buxton LJ upheld Davis J’s decision that neither the Commissioner nor the Tribunal had had any jurisdiction to entertain Mr Sugar’s challenges [2008] 1 WLR 2289.

Mr Sugar then appealed to the House of Lords, succeeding by a majority, Lord Hoffman and Baroness Hale dissenting. Although the terms of the speeches are not identical, the majority in the Lords held that the Corporation was a public authority for the purposes of Section 1 of the Act, whatever the nature of the information sought; that a person making a request for information was entitled to complain to the Commissioner if he or she considered that the Corporation had not dealt with his request in accordance with the Act; that the Commissioner had jurisdiction to entertain such a complaint and the Tribunal had had jurisdiction to determine Mr Sugar’s appeal. Their Lordships further ruled that since Davis J had not proceeded to reach a conclusion on the ‘journalism issue’ as to whether the Tribunal’s decision was wrong in law, the Tribunal’s decision would be restored as the governing decision on whether the report was held for the purposes of journalism, but that the BBC’s statutory appeal against that decision would be remitted to the Administrative Court for determination. It is by that route that this case comes before me.

It is necessary to begin with a point of evidence. I have summarised above, from witness statements admitted and adopted by the witnesses, or from oral evidence, how the BBC witnesses saw and described the Balen Report, and understood its purposes. No witness gave evidence to the Tribunal with any different effect. No witness suggested that the Report was created or held predominantly for any purpose other than journalism.

The Tribunal had available to them the Report itself, and were able to read it. Naturally, the BBC witnesses and their legal representatives had the text available, as did the Commissioner and his lawyers. The Report was not provided to me. When I raised the question as to whether I should not read the report, counsel for Mr Sugar objected, on the basis that if I did, I would then be deciding the case on the basis of material which only he and his client had not been able to see. He submitted this would be unfair and would likely lead to complications. I could certainly accept that the submission had some force, in the sense that if the content of the Report was important for the decision, but could not be revealed to the aggrieved requester of information, this in some measure added insult to injury. In the face of this, counsel for the BBC and the Commissioner were neutral, to begin with. At the end of the first day of the hearing, I took time to consider the point overnight.

At the commencement of the second day of the case, the BBC changed their position, and positively suggested that I should read the Report. However, I did not do so, for the following reason.

In paragraph 133 of their reasons, the Tribunal concluded:

I asked Mr Eicke, who appeared for Mr Sugar, if his client accepted that conclusion, and therefore accepted that, until it was sent to the Journalism Board, the Balen Report was held (at least predominantly) for the purpose of journalism. Mr Eicke confirmed that his client had not cross-appealed and did not challenge that conclusion. I was therefore able, given the way matters lay in this case, to proceed without reading the Report, since the unchallenged position was that the Report when written, and indeed for some time after that, was held at least predominantly for the purpose of journalism. It follows that the content of the Balen Report could only underpin an unchallenged conclusion as to the origin and essential nature of the information in the Report. The argument here really turns on whether, on the facts of this case, the purpose for which the Report was held altered over time, something which neither party argued fell to be determined from its content, which of course remained unchanged.

It seems appropriate to note that in future statutory appeals under the Act, this problem will almost certainly arise, without the opportunity of such a solution. If the nature of the information held is in question, and if secondary evidence such as a description of the contents is insufficient to determine the point, it would seem inevitable that the Court will have to see the documents in question, even though the person requesting the information cannot, and despite the fact that the other parties, the Commissioner and the Tribunal have been privy to their content.

The Tribunal began by settingout to find the meaning of the term “journalism”. The decision quotes from the evidence of Mr Sambrook as follows:

“I think I would characterise “journalism” as the process or discipline of collecting verifying analysing and presenting information about current events or issues.”

Transcript June 15^th page 80 line 7 – 18.

The Tribunal accepted from Mr Sambrook that unlike newspapers, where the functions of editorial and management responsibility are separated, that was not the case in the BBC. From programme editor upwards, journalistic and managerial functions are mixed. They noted Mr Sambrook’s evidence that making editorial decisions or selections in the light of resources available might be characterised on the one hand as management, but on the other hand they are “…….absolutely core to journalism and determine both the quality, the nature and the character of journalism”.

The Tribunal went on to observe in their decision at paragraph 101 that:

“It would appear from this evidence that the BBC believes that the ordinary meaning of journalism is such that it permeates all levels of management to the extent that the largest part of what is done by that management is journalism and therefore covered by the derogation. This would have the effect of excluding most of the BBC management information from the remit of [the Act]. …….however, if a very broad definition was intended, there would be little point in including the BBC in [the Act].”

In that context the Tribunal considered the effect of the various exemptions, which might leave little room for any material to be disclosed pursuant to the Act, unless a narrow definition of journalism were adopted. The Tribunal expressed themselves to be uncomfortable with the distinction between journalism and the management of journalism, a distinction which they found to be unhelpful and incapable of reasonably precise definition. Management they felt could be exercised at many levels including close to the front line.

The Tribunal went on to conclude that they found:

“…….a more useful distinction [to be] between functional journalism and the direction of policy, strategy and resources that provide the framework within which the operations of a PSB [Public Service Broadcaster] take place…….In relation to functional journalism we find that it covers collecting or gathering, writing, editing and presenting material for publication, and reviewing that material. In order to further understand functional journalism the Tribunal considers the following three elements constitute functional journalism …..the first is the collecting or gathering, writing and verifying of materials for publication. The second is editorial. This involves the exercise of judgement on issues such as: the selection, prioritisation and timing of matters for broadcast or publication; the analysis of and review of individual programmes and the provision of context and background to such programmes. The third [element] is the maintenance and enhancement of the standards and quality of journalism (particularly with respect to accuracy, balance and completeness). This may involve the training and development of individual journalists, the mentoring of less experienced journalists by more experienced colleague, professional supervision and guidance, and reviews of the standards and quality of particular areas of programme making.”

The Tribunal went on to quote from the provisional decision of the Commissioner, who had described the “derogation” (by which he meant the definition set out in Schedule 1), as protecting:

“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 Tribunal accepted explicitly the argument that the “derogation” was intended to establish a “journalistic space” but considered that some closer understanding of that space was required. The Tribunal concluded that the three elements described above constituted the ordinary meaning of “journalism” which “makes sense of the derogation”.

The Tribunal went on to conclude that the news gathering and editorial functions (the first two legs of the Tribunal’s definition set out above) fall within the “journalistic space” and constitute a part of the “information gathered…..for the purpose of programme making”. The Tribunal then went on to consider the “quality assurance” aspect of journalism which had held particular importance for the Balen Report. After some discussion, the Tribunal accepted that output reviews:

“…..including the bulk of the material in the Balen Report, are produced for the purposes of journalism and will be generally within the scope of the derogation. As such, if held solely for that purpose, they will be outside the remit of [the Act]. However, it is possible that some information may be held by the BBC for more than one purpose and may be held for different purposes at different times.”

The Tribunal went on to conclude that if an output review was held by an editor and consulted in order to improve future output, then it would be held for the purposes of journalism. By contrast however “…..if the review was used to support a case for additional financial or staffing resources to enable the weakness to be corrected, or to make a case for additional resources to be allocated to one area rather than another, it would then be held for other purposes and would lie outside the derogation”.

In addition, the Tribunal went on to find in paragraph 126 of their reasons that, if an output review was held at very senior levels within the BBC, so as to ensure that the Corporation met its obligations of impartiality within the Charter, then:

“…..in our view it would he held for the purpose of governance, in addition to any other purpose for which it might be held.”

In paragraph 132 the Tribunal concluded that:

“When the report was considered by the Journalism Board, the purposes it supported were of a policy and strategic nature, related to the overall allocation of resources and to the discharge by the Governors, through the Senior Executives of the BBC, of their Charter responsibilities. The Tribunal is clear that when originally commissioned, Mr Balen’s work was for predominantly journalistic purposes. It formed a part of the third leg of the meaning of journalism that the Tribunal has adopted in that it was primarily an output review intended to assure and enhance quality. However when elevated to the Journalism Board…….it was used for and hence was held for wider purposes of strategic policy and resource allocation, which lie outside the scope of the derogation.”

For that reason the Tribunal reversed the decision of the Commissioner and, setting out to apply the test of “predominant purpose”, concluded that the Balen Report lay outside the derogation and was disclosable.

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.

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, 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 this 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 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 the Balen Report was held for the purpose of journalism, but was also held, to more than a minimal extent, in order to help ensure that the BBC would satisfy its Charter obligation that its journalism should be impartial, or to inform decisions about editorial 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 Tribunal 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.

Counsel for Mr Sugar argues that the wording of s 7(1) means that his interpretation is to be favoured, since the wording of that sub-section means the Act is ‘inclusive’ as opposed to ‘exclusive.’ I have wrestled with this, but fail to see how the wording of this subsection makes any difference either way. Within s7 (1) the ‘information of a specified description’ means the information described in Schedule 1. Thus the expanded text of S7(1) as it affects the BBC would read:

I have simply failed to grasp how that helps to determine the meaning of ‘..information held for purposes other than journalism..’

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, sometimes 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, 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). However, 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 by the BBC 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 a ‘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.

All 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.

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 may be 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.

I have noted above that there was literally no witness who suggested that the purpose of the Balen report was other than journalistic, and the BBC do suggest that for that reason, the Tribunal’s conclusion represents a perverse finding of fact. In my view, however, this is not entirely a question of fact, but rather the application of the law to fact. The Tribunal were not bound to find that the information was held for the purpose of journalism simply because all the witnesses took that view, perhaps precisely because this is at least in part a matter of a judgement, not simple fact. The Tribunal were entitled to make such a judgement about this question.

This point is lent force by the fact that the requester of information, in this case Mr Sugar, by definition has not read the information, and is thus hampered in giving or adducing evidence on this very point.

However, the instant case does not turn on supposed perverse findings of fact, so much as the application of the law. In addressing that question, I begin with the question of the meaning of “journalism”.

I have set out above what the Tribunal found to be “functional journalism”, which is in point of fact what they concluded should be considered to be “journalism” for these purposes. It seems to me that the Tribunal was right in concluding that all three limbs of what it describes as “functional journalism” fall within “journalism”. However, it seems to me unhelpful to erect the concept of “functional” journalism as representing the test under the Act since that presupposes that there are activities which would constitute “journalism” which would fall outside the definition in Schedule 1.

The point is well illustrated by the facts of the instant case. The Tribunal appear to have concluded that, once the Journalism Board had before it the Balen Report in order to consider either the BBC’s Charter obligations or the creation of Middle East Editor, then, because those activities fell outside their definition of “functional journalism”, the Report was held for purposes other than journalism and was disclosable. With great respect to the Tribunal, I do not think that this can be the law, even if I am wrong, and the predominant purpose test is the correct approach.

The BBC’s obligations of impartiality, obligations which are perhaps more apt to “journalism” than to art or literature, are not divorced from the activity of journalism. Indeed, it seems to me that in taking decisions which ensure that the BBC conforms to its obligations of impartiality, journalistic considerations are absolutely central. Indeed, such decisions seem to me to fall squarely within the definition the Tribunal gave of the third limb of ‘functional journalism’. Ensuring impartiality, whilst creating conditions in which challenging and penetrating journalistic coverage is possible, may well be described as strategic thinking and decision-making, but such a task is surely intrinsically concerned with journalistic output, even if the immediate activity of reviewing adherence to the Charter obligations may not be “journalism” in the sense of the activity of journalism.

It seems to me those considerations do not exclude information such as the Balen report being held for the purposes of journalism, even when the focus is on the Charter obligations. The end product of such high level decision-making is, or is intended to be, to sustain or improve the quality of journalistic output. It is important to stress that the test centres on the purpose for which information is held, not on the activity. To give a homely parallel, a cookbook is not cookery, but it is normally held predominantly for the purpose of cookery.

Therefore, once more with respect, I differ from the Tribunal. I would hold that the distinction between “functional” journalism and some other journalistic purpose cannot represent the law. If the information is held for the (predominant) purpose of journalism, and even when it is held by those with a primary focus on the obligations under the Charter, it is not disclosable.

Likewise, it seems to me difficult to find that if and when information is held (predominantly) for the purpose of altering the management of, or supervision of, front line journalism, it is necessarily outside the definition. Here the distinction may be rather finer.

If at a time of financial stringency, the BBC Trust decide to cut the “top-down” budget of a given sector of the Corporation, meaning that there has to be a managerial restructuring, and commission a report as to how such cost-cutting can best be achieved, then it would seem to me much harder for the BBC to argue that the information was held “for the purpose of journalism”. Although no doubt such a restructuring would have a significant effect on journalistic output, the purpose in hand would be to save money.

However, that was not the case with the Balen Report, or with the managerial or structural changes in question here, of which the principal was the creation of the post of Middle East Editor. In this instance, it is perfectly clear that the purpose or object of this structural change was to improve journalistic output. Journalism drove the change, not money. The purpose was to improve or sustain the quality of journalism, not cost cutting. There was no evidence to the contrary before the Tribunal. Here too, with regret, I conclude that the Tribunal fell into error in relation to the Balen Report.

It also seems to me doubtful in this case that the Tribunal actually applied a test of “predominant” purpose.

The Balen Report was held simultaneously by a number of people within the organisation who had different interests and responsibilities. When the Balen Report went to the Journalism Board, it did not cease to be held by all those within the organisation who already had it. Even if the Tribunal were correct in concluding that the purposes for which the Journalism Board held the report were not predominantly journalistic, this reading of the law surely required them to consider the BBC as a whole, not just the Journalism Board. It seems to me the required judgement, under this test, was whether transmission to the Journalism Board altered the overall balance of purpose for which the Report was held within the organisation as a whole.

A sensible approach to establishing the predominant purpose for which information is held must surely include taking into account the reasons why the information was commissioned or sought out, the content of the information itself, and the range of applications or purposes to which it is to be put, or might realistically be put, in relation to the period in which the request was made and in relation to the Corporation taken as a whole. That does not mean that, given appropriate facts, the purpose (or predominant purpose) of a given set of information may not change, rendering information disclosable, or vice versa.

The Tribunal do not appear to have formulated such a judgment. Rather their conclusions seem to suggest that, as soon as the Report went to the Journalism Board, then because the Board held the Report for purposes which the Tribunal found not to be “journalism”, the Report became disclosable. This conclusion seems to me to amount to saying that the Report became disclosable once it was held to a significant degree (rather than predominantly) for purposes which the Tribunal had concluded were not journalism.

Mr Eicke for Mr Sugar argued that the same report might be held for different purposes at different times. Of course this must as a matter of fact be potentially so. In relation to the Balen Report, Mr Eicke conceded that the report was journalistic to start with and was held for the purposes of journalism; then he said, in the hands of the Journalism Board, it was predominantly held other than for the purposes of journalism; then again he conceded that when the Journalism Board (or other parts of the organisation not engaged in “functional journalism”) ceased to hold the report for any active purpose, yet whilst the Report was held by those who were actively engaged in journalism, it would cease to be disclosable. The relevant date for the application of the test is suggested to be the date when the information is requested. In many situations, including this one, the requester would have no idea as to which group or which level within the BBC was holding the Report and for what purposes. Following this approach, it would be completely arbitrary as to whether Mr Sugar or his equivalent made the request at a time when the organisation held the Report predominantly for the purpose of journalism or not.

It seems to me that the only sensible approach to a ‘predominant purpose’ test would be to ask ‘in the period during which the request was made, did the BBC taken as a whole, hold the requested information for the predominant purpose of journalism?’ The term ‘journalism’ falls to be interpreted reasonably broadly, and cannot be cut down to mean ‘functional journalism’ or given any other restricted sense. Much less can it be the law to ask if the preservation of the information from disclosure serves to preserve the ‘creative and journalistic space’. This phrase too is a construct, based on a formulation of the supposed policy purpose behind the definition in the Schedule.

The contending policy considerations here are fairly easy to state. The BBC is a public body under the Act; it receives public funds; there is a public interest in access to information about the Corporation’s activities, perhaps particularly finances, given the public subsidy. On the other hand, there is a public interest in preserving the freedom of journalistic, creative and artistic activity, and perhaps particularly decision-making. Different views may legitimately be taken about these questions, particularly at the margins, or where the principles collide. The resolution is for Parliament, not for the Courts or the Tribunal. The resolution is contained within the proper meaning of the language of the statute. Even if, for present purposes, it is accepted that the ‘predominant’ purpose is in question, it seems to me there is no basis in law for adding a restricted meaning to ‘journalism’.

For these reasons, I would hold that the Tribunal fell into error, even if the correct approach in law was to identify the “predominant purpose” for which the Balen Report was held. Thus even if I am wrong in my interpretation of the material words in the Schedule, I would quash the decision of the Tribunal, and for the reasons I have given, restore the effect of the decision by the Commissioner.