Ed Ryland v The Information Commissioner

On 24 November 2022 Mr Ryland made a request under s. 1 of the Freedom of Information Act 2000 (‘FOIA’) addressed to Channel Four Television Corporation (‘Channel 4’) in the following terms:

On 8 December 2022 Mr Ryland supplemented his request as follows:

Channel 4 responded to the request on 22 December 2022, stating that it did not believe the requested information was subject to FOIA because it was held for the purposes of art, journalism or literature.

On 22 December 2022 Mr Ryland complained to the Information Commissioner (‘the ICO’) about Channel 4’s response.

In a Decision Notice (‘DN’) dated 3 April 2023 the ICO concluded that:

The ICO then analysed the nature of the information Mr Ryland had requested from Channel 4 and concluded that:

The ICO therefore decided that:

On 15 April 2023 Mr Ryland appealed to the Tribunal against the DN. His Grounds of Appeal highlight the fact that the government of Qatar owns a 15% share in Sainsbury’s, and raise arguments as to why it may be in the public interest to establish how much funding Channel 4 has received from this source.

The Grounds of Appeal, as initially raised, are:

Mr Ryland has subsequently raised an additional Ground of Appeal, namely that in respect of his request, Channel 4 has failed to comply with its obligation under s.16 FOIA to provide a requester with reasonable advice and assistance. He submits that it has become clear over time that his request was open to more than one interpretation, and that Chennel 4 should have clarified the nature and breadth of the information he had requested. Mr Ryland’s position is that Channel 4 interpreted his request as relating solely to information about advertising revenue from GBBO, that this was the limited basis upon which Channel 4 responded and that this error in interpretation was further adopted by the ICO and is reflected in the DN.

In its response to Mr Ryland’s appeal, Channel 4 submits primarily that the requested information is subject to the derogation and therefore exempt from FOIA. However, in the course of these proceedings it has sought to rely in the alternative on s.43(2) FOIA. In summary, Channel 4’s alternative position is that, should the Tribunal decide that the requested information is not held for a derogated purpose, the Panel could go on to consider, based upon the material already before it, whether publication of the requested information would, or would be likely to, prejudice the commercial interests of (a) Channel 4, (b) Sainsbury’s, and/or (c) Omnicom (the advertising agency with whom Channel 4 negotiates its overall advertising relationship with Sainsbury’s), and whether the public interest in maintaining the s.43(2) exemption outweighs the public interest in making the information public.

Although the ICO has responded to Mr Ryland’s Grounds of Appeal, it has not considered the application of s.43(2) to the requested information because this issue was not raised by Channel 4 during the ICO’s investigation of Mr Ryland’s complaint and has therefore not been investigated by the ICO.

At the start of the appeal hearing, the Panel also declined to consider Channel 4’s submissions in relation to the application of s.43(2) to the requested information. This was because:

Other than the application of s.43(2) and the public interest test, by the date of the hearing the issues identified by the parties for determination by the Tribunal were:

The parties agree that the primary task of the Tribunal is to assess whether the requested information is held for a derogated purpose, and is therefore not subject to the requirements of FOIA.

In addition to detailed written and oral submissions, the Panel were assisted by witness evidence from Verica Djurdjevic, the Chief Revenue Officer for Channel 4. She confirmed that Channel 4 is a public service broadcaster (‘PSB’), and therefore a not-for-profit corporation with a bespoke and mandated remit in terms of its creative output, as set out in the 1990 and 1996 Broadcasting Acts, as amended.

Ms Djurdjevic explained that 90% of the funding for Channel 4 comes from advertising, and that the channel seeks to optimise returns from commercial activities. All revenue received by Channel 4 is reinvested, with the majority spent on acquiring and commissioning programme content for broadcast. Ms Djurdjevic stated that all revenue received by Channel 4 goes towards funding future broadcast output, which finding includes commissioning new content and purchasing (and sometimes bidding for) other types of content.

Ms Djurdjevic identified five types of commercial arrangements that Channel 4 enters into with advertisers:

Ms Djurdjevic confirmed that, during the period relevant to Mr Ryland’s request, the majority of Channel 4's revenue from Sainsbury’s was from traditional advertising, although revenue was also received from two creative partnerships, one sponsorship deal and one advertiser-funded programme. She explained that Channel 4’s commercial relationship with Sainsbury’s is managed and negotiated through Omnicom.

Ms Djurdjevic stated that Channel 4 held as building block information the spend allocated to each advertiser for the relevant period across each type of commercial arrangement, but that the channel had never had cause to aggregate any of the building blocks with a view to producing a combined figure, either in order to identify the total commercial revenue received from one advertiser, or to establish the percentage of total revenue this figure might represent. However, Ms Djurdjevic accepted that Channel 4 could, if required, generate the requested aggregate information.

In terms of the relationship between advertising and Channel 4’s creative output, Ms Djurdjevic stated that the channel has the same regulatory responsibilities in relation to all content it broadcasts, including its advertising output. She explained that Channel 4 employs a team whose role is to consider and research the social and other impacts of advertising, and to make advertising scheduling decisions, matching advertising content to programmes. She explained that Channel 4 always acts to maximise revenue because this has a direct impact upon the channel’s ability to acquire or commission programmes for broadcast. A decline in advertising revenue would lead to a reduction in the number of expensive programmes Channel 4 would be able commission, which would in turn have an impact upon its ability to meet its public service broadcasting obligations.

Ms Djurdjevic also spoke about the commercial sensitivity of the requested information. In essence, she stated that publication of the aggregate information would enable other organisations with an interest in TV advertising to calculate the advertising rates negotiated between Channel 4 and advertisers, and would therefore put Channel 4 at a significant commercial disadvantage in the future when bidding on popular content. The Panel concluded that this aspect of Ms Djurdjevic’s evidence went mainly to the application of the s.43(2) exemption, should the Tribunal conclude that the requested information was not subject to the derogation, rather than to the issue of whether the derogation applies. However, the Panel accepted Channel 4’s submission that the issue of whether a public service broadcaster might be put at a commercial disadvantage may be relevant to a purposive interpretation of the derogation, considered in the paragraphs below.

The Panel was assisted by detailed written and oral submissions by Mr Ryland, both before and after the hearing.

Mr Ryland accepts that, given some of the commercial arrangements Channel 4 enters into with advertisers, some building block information will have a more direct link with a derogated purpose. However, he submits that since his request is for aggregated information, which is information that does not currently exist and is different in nature from any individual building block, it cannot be said that the requested information is held for any purpose at all, let alone a derogated purpose.

Mr Ryland contends that the approach the Tribunal should take when determining the relationship between building block information and aggregate information should be the same taken by FOIA in relation to personal data. This approach prohibits the publication of information that is personal data from which an individual could be identified but permits publication of information where personal data is sufficiently anonymised, often through aggregation, to prevent this from happening.

In the alternative, Mr Ryland submits that should the Tribunal conclude that aggregate information about Channel 4’s commercial revenue from Sainsbury’s is not new information wholly different from the building blocks, then there is minimal, if any, link between the information once aggregated and a derogated purpose. He structures his submission around the tripartite definition of functional journalism, approved by the Supreme Court in Sugar (No 2). In essence, Mr Ryland contends that the majority of Channel 4’s revenue from Sainsbury’s is received from spot advertising, that the broadcast of spot advertising is not akin to the BBC’s creative output and ought not to be treated in the same way, and that advertising is not generally broadcast for a journalistic, artistic or literary purpose.

The ICO’s position is that the requested information is held for a purpose that has a direct link to Channel 4’s journalistic, literary or artistic output. He submits that the derogation therefore applies for the reasons set out in the DN, firstly because the requested information has a direct link to Channel 4’s editorial decisions about the selection, prioritisation and timing of matters to be broadcast. This is, he contends, because Channel 4 makes decisions about which programmes it can afford to broadcast based upon the levels of advertising revenue it can expect to receive when doing so. Secondly, the ICO submits that Channel 4 makes editorial decisions in relation to the selection of advertisements for broadcast, including when making selective, editorial decisions about sponsorship arrangements.

The ICO submits that Mr Ryland’s argument that the purpose for which aggregated information is held can be viewed as distinct from its constituent parts is misconceived. He contends that the approach taken by FOIA when assessing of information is to look at the contend of the information rather than the form in which it is held. Therefore, he submits, if some or all of the building block information is held wholly or partially for a derogated purpose, then this does not change simply because the form in which the information is held is altered through aggregation.

The ICO contends that the ruling of the Supreme Court in Sugar (No 2) as respects the meaning of the derogation was intended to apply to all broadcasters listed in Schedule 1 of FOIA, which includes Channel 4, and that nothing in the either FOIA or the Supreme Court judges suggests that a different approach should be taken to the application of the derogation to the output of the BBC versus Channel 4 due to the difference in funding models. Therefore, in the ICO’s view, the derogation applies to all of Channel 4’s output, including advertising output.

Channel 4 adopts the ICO’s submissions. It submits that information held about the channel’s advertising revenue is either directly related to output within definition of ‘journalism, art or literature’ or that it has a sufficiently close connection with such output as to be still be within the derogation.

Channel 4’s primary position is the former. It contends that one reason why information about advertising revenue can be properly described as being held for a purpose connected to ‘journalism, art or literature’ is because the channel makes editorial decisions about advertising output, and bears the same regulatory responsibility for it as it does broadcast programmes. In the alternative, Channel 4 submits that, due to its funding model, information held about advertising revenue will invariably have a close and direct link with the programmes it is able to commission and broadcast. Without the assurance of advertising revenue, Channel 4 submits that it would be unable to commission or buy many of the programmes it broadcasts. It contends that this connection arises in relation to all information held about advertising revenue, however generated, although the connection is particularly close in the context of revenue obtained from sponsorship agreements. Further, Channel 4 submits that advertising revenue generated from programmes with higher viewing figures is used to fund broadcast output that is less likely to attract advertising interest in its own right, such as the News. As a consequence, all information about advertising revenue is likely to be have a direct link with Channel 4’s ability to comply with it remit as a public service broadcaster and therefore with a journalistic, literary or artistic purpose.

In relation to the building blocks issue, Channel 4 accepts that it holds strands of information from which the aggregate information requested by Mr Ryland could be calculated. It also accepts the principle identified in Johnson v ICO & MOJ (EA/2006/0085) that the lack of pre-existing aggregated information cannot be relied upon as a basis upon which to refuse a FOIA request. However, Channel 4 submits that the Johnson principle does not require a public authority to aggregate derogated information, for the purpose of generating ‘new’ information to which the derogation may not apply. It contends that any building block information subject to the derogation will still be derogated even if aggregated with other information, because it one of the purposes for which it is held will still be connected to journalism, literature or art.

Channel 4 also relies on paragraphs 37 and 64 of Sugar (No 2) to submit that the Tribunal should adopt a purposive approach when determining whether information is subject to the derogation. It argues that one purpose of the derogation is to prevent a public service broadcaster being placed at a disadvantage in comparison to rivals. Channel 4 argues that the Tribunal, when considering the derogation, should consider whether publishing the information would place the public service broadcaster at a disadvantage in respect of a derogated purpose in comparison to a commercial rival. Such as outcome, it submits, is an indication that the derogation should apply.

The Panel agreed that FOIA must be understood and applied by considering the content of information held by a public authority rather than any particular form in which the information may be held. This is explicit in s.84 which defines information as being ‘information recorded in any form’. In the context of the derogation, the determining factor is the purpose for which information is held.

The Panel was satisfied that the act of combining derogated information with other information does not have the effect of removing any direct link that may exist between the content of the information and the purposes connected to journalism, literature or art, even if the aggregated information is intended to be used differently. Provided there is a sufficiently direct link between the content of information held by a public service broadcaster and the purposes of journalism, literature or art, that information will be subject to the derogation.

The Panel therefore considered whether the derogation applied to the various building blocks of information identified by Channel 4, from which the aggregate information requested by Mr Ryland would be constructed. The Panel concluded that the derogation did apply, for the following reasons:

Having decided these points, the Panel concluded that all of the information requested by Mr Ryland in an aggregated form was made up of building blocks of information that were subject to the derogation and therefore exempt from FOIA. As such, having regard to the content of the requested information rather than to the form in which it might be published, the Panel agreed with the conclusion of the DN that the information Mr Ryland had requested was also subject to the derogation.

The majority of the written submissions in this case relate to these remaining issues. Mr Ryland submits that the ICO did not consider or apply the ‘building blocks’ argument at the time of serving the DN, because the ICO interpreted his request for information as relating solely to information about adverting revenue from GBBO. He submits that Channel 4 initially appeared to agree with his reading of the DN, and contends that the channel also interpreted his request in the same narrow manner at an earlier stage of its response. Mr Ryland asserts that, given that his information request was open to misinterpretation, Channel 4 failed to comply with the obligation in s.16 FOIA to seek clarification of the scope of his request.

The ICO disputes that the DN considered only the issue of information about advertising revenue from GBBO, or that it failed to consider other building block information. and points to paragraphs 23-26 in support of this submission. The ICO accepts that later paragraphs of the DN refer only to information about revenue from GBBO but contends that the DN must be read as a whole.

In relation to the s.16 point, the ICO submits that Channel 4 appears to have considered Mr Ryland’s information request broadly and points in particular to Channel 4’s 14 February 2023 response to the ICO’s request for information. The ICO also contends that Mr Ryland is unable to raise in the course of this appeal the issue of Chennel 4’s compliance with s.16 because this was not considered in the DN.

Channel 4 submits that the DN, read as a whole, makes clear that the ICO interpreted Mr Ryland’s request for information broadly, as he intended, and contends that Mr Ryland’s assertion that it presents as considering only information about advertising revenue from GBBO reflects a partial reading.

In relation to the s.16 point, Channel 4 submits that there was no breach of this duty because there was no ambiguity about the scope of Mr Ryland’s request. However, Channel 4 acknowledge that, as set out in the statement of Rebecca Miller, some of the correspondence sent to Mr Ryland by staff at Channel 4 staff at times demonstrated a subjective misunderstanding of the scope of his request. However, the channel contends that overall its response to the information request was unambiguous and reflected a broad interpretation.

The Panel found that the drafting of the DN was suboptimal, in that it is both unduly brief and at times refers solely to information about advertising revenue from GBBO. For example, at paragraph 21 the DN states:

However, the Panel accepted that, read as a whole, the DN refers to all advertising broadcast by Channel 4, albeit rather succinctly. In the Panel’s view, the DN would have been enhanced by a more detailed explanation of the matters investigated, the route by which the ICO determined that each of the building blocks was subject to the derogation and the reasons why aggregation of the information has no effect. The Panel concluded that the brevity of the explanation provided in the DN contributed significantly to the burden on the parties to this appeal. However, the conclusion reached in the DN is in accordance with the law and is upheld.

In respect of the s.16 issue, the Panel determined that this was an issue capable of having been addressed in the DN, in the context of this case. The Panel found that some of the correspondence from Channel 4 staff about Mr Ryland’s request was clearly mistaken about the scope of the information he was seeking. However, the Panel concluded that the overall response by Channel 4 was correct in terms of identifying the entire scope Mr Ryland’s request and, as a consequence, no clarification by Channel 4 pursuant to s.16 had been required.