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The BBCs remitted appeal against the Tribunals journalism decision came to be determined by Irwin J. By order dated 2 October 2009, [2009] EWHC 2349 (Admin), [2010] 1 WLR 2278, he allowed the appeal. FAC |
Although Mr Sugar reserved the right to advance his polarised construction in the event of a further appeal, all three parties i.e. including the Commissioner, who in the further appeals has ceased to play an active part in the proceedings accepted before Irwin J that the Tribunal had been correct to adopt the dominant... |
But at this point the litigation took another unexpected turn. FAC |
Concerned that he was being invited to determine the appeal on a false legal basis, the judge invited the parties to address him on the polarised constructions which the Tribunal had rejected. FAC |
In the event he adopted the BBCs polarised construction. FAC |
My conclusion is said the judge, at para 65, 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. RLC |
Not even Mr Sugar was disputing that, at the date of its receipt of his request, the BBC was continuing to hold the report to some (other than minimal) extent for purposes of journalism; so it followed that the appeal should be allowed. RLC |
The judge added that, had it been appropriate to determine the appeal by reference to the dominant purpose for which, at the date of its receipt of Mr Sugars request (or, rather, which the judge considered would be less arbitrary, in the period during which the request was made), the BBC held the report, he would, agai... |
It is against the dismissal by the Court of Appeal of Mr Sugars appeal against the order of Irwin J that the present appeal is brought. FAC |
In that court, and in the light of Irwin Js judgment, the BBC reverted to casting its polarised construction as its primary contention; and the dominant purpose construction once more became only its secondary contention. FAC |
In delivering the leading judgment, with which both Moses LJ (who delivered a concurring judgment) and Munby LJ agreed, Lord Neuberger rejected the dominant purpose construction and, although he described each of the polarised constructions as arguable, he agreed with Irwin J that that put forward by the BBC was prefer... |
Since on any view the purposes for which the BBC held the report at the date of its receipt of Mr Sugars request to some extent included those of journalism, his appeal therefore failed. FAC |
But a question arises whether the Court of Appeal approached the case on the basis that the purposes for which the BBC held the report at the relevant date were solely those of journalism. FAC |
Observations which tend in that direction are to be found in the judgments both of Lord Neuberger at para 65 and of Moses LJ at para 83. FAC |
Nevertheless, had such been its conclusion, it would have been unnecessary for the Court of Appeal to address at length the application of the designation to a situation in which information is held for purposes partly of journalism and partly otherwise. FAC |
In considering it necessary to address the same point Irwin J must have held that, as the expert fact-finder, the Tribunal had been entitled at any rate to find that the purposes for which the BBC held the report had been to some extent for purposes other than those of journalism; and the Court of Appeal did not dissen... |
At all events the BBC positively invites this court to proceed on the premise that it held the report for purposes partly of journalism and partly otherwise: it seeks a definitive ruling on the application of the designation to such a situation. FAC |
D: THE SCHEME OF THE ACT STA |
The purpose of the Act is stated at its outset to be to make provision for the disclosure of information held by public authorities or by persons providing services for them... STA |
Section 1, described in the side-note as providing a General right of access to information held by public authorities, provides by subsection (1) that, subject to other specified provisions, any person making a request for information to a public authority is entitled (a) to be informed by the authority whether it hol... |
Subsection (4) provides that, for the purposes of the section, the information is that held at the time when the request is received. STA |
Section 2 (2) is important for present purposes. STA |
It provides: In respect of any information which is exempt information by virtue of any provision of Part II, section 1 (1) (b) does not apply if or to the extent that (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the publi... |
As the subsection foreshadows, Part II of the Act provides for the exemption of certain categories of information from disclosure. STA |
Section 2(3) confers absolute exemption upon various of the categories. STA |
The other categories enjoy only qualified exemption: information in such categories is not required to be disclosed only if the test in subsection (2)(b) is satisfied; and the bias of the Act in favour of disclosure is visible in the requirement that the public interest in maintaining the exemption should outweigh the ... |
Among the categories upon which the Act confers absolute exemption is information which relates in specified respects to national security (section 23), to court proceedings (section 32) or to personal data of which the applicant is the subject (section 40(1)), or the disclosure of which would constitute an actionable ... |
Among the categories upon which the Act confers qualified exemption is information the disclosure of which would be likely to prejudice the defence of the British Islands and colonies (section 26) or the UKs international relations (section 27) or its economy (section 29) or law enforcement (section 31) or which relate... |
But, in the context of the present appeal, it is worth noting, in particular, two further categories of information upon which the Act confers qualified exemption. Ratio |
The first is information the disclosure of which would be likely to prejudice the commercial interests of the public authority (section 43(2)). Ratio |
The second is information the disclosure of which, in the reasonable opinion of a qualified person (which in the case of the BBC is the corporation itself, acting by its governors) 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 purp... |
One might have expected that, in the event that the Balen report were to be held to fall within the scope of the Act, the BBC would wish to seek exemption from its disclosure under section 36(2)(b). Ratio |
By letter to Mr Sugar dated 10 June 2009, however, the BBC confirmed that, in that event, it would not claim any exemption under the Act. Ratio |
Perhaps its stance was tactical, designed to sharpen the edge of the current issue. Ratio |
Section 3 of the Act defines a public authority as any body, person or office-holder listed in Schedule 1 (or designated by future order of the Secretary of State) and any publicly-owned company, as defined. STA |
Schedule 1 contains a long list of bodies, persons and office-holders, some defined generically and others specifically. STA |
The schedule is divided into seven parts, namely I General, II Local Government, III The National Health Service, IV Maintained Schools and Other Educational Institutions, V Police, VI Other Public Bodies and Offices: General and VII Other Public Bodies and Offices: Northern Ireland The BBC (together with the designati... |
In para 56 of his judgment on the jurisdiction issue Lord Hope explained that the length of the list in Schedule 1 was testament to Parliaments wish to obviate dispute about the identity of the public authorities who were subject to the Act. STA |
Section 7(1) of the Act provides: Where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts 1 to V of this Act applies to any other information held by the authority. STA |
Four public authorities are listed in Schedule 1 in terms of the designation, i.e. in respect of information held for purposes other than those of journalism, art or literature; they are the BBC, the Channel Four Television Corporation, the Gaelic Media Service and Sianel Pedwar Cymru (being the Welsh television channe... |
Other authorities are listed only in relation to information of other specified descriptions. STA |
For example the House of Commons, the House of Lords and the National Assembly for Wales are listed in respect of information other than of a specified sort which might serve to identify the residential addresses of their members (Part I, paras 2, 3 and 5, as amended by article 2 of the Freedom of Information (Parliame... |
The Sub-Treasurer of the Inner Temple and the Under- Treasurer of the Middle Temple are listed in respect of information held in their capacities as a local authority (Part II, para 10). STA |
Those providing medical, dental and ophthalmic services are listed in respect of information relating to their provision of services under the NHS (Part III, paras 43A, 44 and 51). STA |
Six bodies for example the Pharmaceutical Society of Northern Ireland are listed in respect of information held by them otherwise than as a tribunal (Parts VI and VII, as amended by articles 3 and 5 of, and Schedules 2 and 4 to, the Freedom of Information (Additional Public Authorities) Order 2005 (SI 2005/3593)). STA |
And the Bank of England is listed 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 relate... |
PURPOSES ... OF JOURNALISM, ART OR LITERATURE E: STA |
Although they also to some extent reflect the terms of section 12(4) of the Human Rights Act 1998 (to which I will refer in para 58), the words of the designation are essentially derived from the Data Protection Act 1998 (the DPA). STA |
The DPA was passed pursuant to Directive 95/46/EC of the European Parliament and of the Council, dated 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data. STA |
Article 1(1) of the Directive declared its object to be the protection of a natural persons fundamental right to privacy with respect to the processing of personal data. STA |
By recital 37, however, the European Parliament and the Council recognised that the processing of personal data for purposes of journalism or for purposes of literary or artistic expression also engaged the right to receive and impart information, as guaranteed in particular in article 10 of the European Convention for... |
Article 9 of the Directive therefore mandated exemption for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression. STA |
The UKs response to article 9 lies in sections 3 and 32 of the DPA. STA |
The former defines the purposes of journalism and artistic and literary purposes as the special purposes. STA |
The latter provides that personal data processed only for the special purposes are exempt from most of the provisions of the Act, in particular the individuals central right of access under section 7 to data of which he is the subject, if the processing is undertaken with a view to the publication of any journalistic, ... |
The government had initially entertained doubts about the inclusion of the BBC in the Freedom of Information Bill. STA |
In a published paper setting out background material relevant to the publication on 11 December 1997 of its White Paper entitled Your Right to Know (Cm 3818) about the proposed Bill, the government wrote, at para 23: the BBC, Channel 4 and S4C are public corporations that operate to a defined remit specified in the Roy... |
All three operate independently of Government editorially and to the greatest extent possible in economic and regulatory terms. STA |
It might be regarded as anomalous for them to be within the scope of the FOI legislation when the private media (Channels 3 and 5, cable and satellite channels, the Internet, the press and freelances of all sorts) would not. STA |
In the event the public service broadcasters were included in the Bill. Ratio |
But, in the course of the passage of the Bill through Parliament and following representations to the Home Office both by the BBC and by Channel 4, their inclusion was made subject to the designation. Ratio |
The designation had two, linked, purposes. Ratio |
Its general purpose, reflective of the genesis of its three specified concepts in the EU Directive dated 24 October 1995 in relation to access to personal data, was to protect the right of the public service broadcasters to freedom of expression, in particular under article 10 of the ECHR. Ratio |
Its particular purpose, foreshadowed in the background material quoted above, was (as confirmed in a letter dated 13 January 2000 from an officer in the Home Office, which had responsibility for the Bill, to an officer in another department) that the public service broadcasters should not be placed at a disadvantage in... |
Before I turn to purposes, let me reflect on the meaning, in the context of the Act, of the words journalism, art and literature. Ratio |
I suggest that the key to it lies in the omnibus word output. Ratio |
Article 5 of the BBCs Royal Charter (Cm 6925), presented to Parliament in October 2006, provides, at para (1), that the BBCs main activities should be the promotion of its six Public Purposes, specified in article 4, through the provision of output which consists of information, education and entertainment supplied by ... |
In his letter to Mr Sugar dated 24 October 2005 the Commissioner, echoing the word in the Charter, wrote that he interpreted the three words in the designation broadly so as to include all types of the BBCs output. Ratio |
In this respect I discern no dissent from his view in any of the three subsequent decisions in these proceedings; and in my opinion he was right. Ratio |
I would be surprised if any later set of facts was to yield a conclusion that something which the BBC put out, or considered putting out, to the public or to a section of the public did not fall within the rubric either of journalism or of art or of literature. Ratio |
So, although one might have an interesting debate whether nowadays the word journalism encompasses more than news and current affairs, the debate is likely in this context to be sterile. Ratio |
For any output which did not obviously qualify as journalism would be likely to qualify either as literature or in particular, in that its meaning has a striking elasticity as article Ratio |
On any view the subject of this appeal leads us to forsake art and literature and even output itself and to revert to journalism. Ratio |
In what circumstances will the BBC hold information for the purposes of journalism? Ratio |
The Tribunal attempted to answer that abstract question; and the substantial criticism of its decision has been directed not at its analysis but at its application of its analysis to the circumstances in which the BBC held the Balen report. RLC |
Within the word journalism in the designation (which it described as functional journalism a puzzling qualification in that, without elaboration, it implied the existence of other areas of journalism) the Tribunal identified three types of activity: first, the collecting, writing and verifying of material for publicati... |
In relation to this third type, the Tribunal added, at para 116: Self-critical review and analysis of output is a necessary part of safeguarding and enhancing quality. RLC |
The necessary frankness of such internal analysis would be damaged if it were to be written in an anodyne fashion, as would be likely to be the case if it were potentially disclosable to a rival broadcaster. Ratio |
The Tribunal contrasted the three suggested types of journalistic activity with the direction of policy, strategy and resources which provides the framework within which a public service broadcaster conducts its operations. Ratio |
In the Court of Appeal Lord Neuberger said, at para 53, that, at any rate in the present context, he could not improve upon the Tribunals general analysis. Ratio |
Apart from pointing out that its tripartite classification does not readily encompass the actual exercise of broadcasting or publishing the material, the BBC does not quarrel with the Tribunals analysis of what falls within and without the concept of journalism for the purposes of the Act. Ratio |
In my view, and subject to that point, this court should endorse the Tribunals analysis but should decline the BBCs invitation to clothe it with greater specificity. Ratio |
It is important to note, however, that not all financial information will be held by the BBC for purposes other than those of journalism. Ratio |
If financial information is directly related to the making of a particular programme, or group of programmes, it is likely to be held for purposes of journalism. Ratio |
On the same day, namely 2 October 2009, as that on which he handed down his judgment in the present proceedings, Irwin J handed down his judgment in BBC v The Information Commissioner [2009] EWHC 2348 (Admin), [2010] EMLR 121. Ratio |
He held that information about (among other things) costs referable to its broadcast of EastEnders, about its annual budget for Newsnight and about the price paid for its right to cover the winter Olympics in Turin in 2005/06, was held at an operational level in order to assist in the making of editorial and creative c... |
The application of Irelands Freedom of Information Act 1997 to its public service broadcasters is worthy of note. Ratio |
By regulations made in 2000, SI No 115 of 2000, Radio Telefis ireann and other broadcasters were made subject to the Irish Act in relation only to their functions of management, administration, finance, commerce, communications and entry into contracts of service; but the regulations provide that such functions are to ... |
There is a close parallel between the effect of the express provisions made in Ireland and the meaning to be attributed to the bare words of the designation in our Act. Ratio |
There was also an interesting application of the Irish Act in the decision of the Irish High Court in Radio Telefis ireann v The Information Commissioner [2004] IEHC 113. PRE |
RTE is under a statutory obligation to ensure that its broadcasts of current affairs are impartial. PRE |
To that end it collected data as to the amount of broadcast time which it had afforded to each political party during the general election campaign in 2002. PRE |
Caoimh J held that the data related to editorial decisions and to post-transmission internal review and so did not fall to be disclosed under the Irish Act. PRE |
The BBC has an obligation to seek to ensure that its broadcasting of news is impartial as well as accurate: see clause 6(1) of the Framework Agreement between the Secretary of State for Culture, Media and Sport and the BBC made on 30 June 2006 (Cm 6872) for the purposes of the BBCs Charter. Ratio |
Inevitably the Tribunal found that, when it first came into existence, the Balen report into the impartiality or otherwise of the BBCs coverage of the Israeli/Palestinian conflict was held (or, as it preferred to say, was predominantly held) for purposes of journalism. Ratio |
Its error, as correctly identified by Irwin J and the Court of Appeal, was to conclude that, once the report had been placed before the Journalism Board, it came predominantly to be held for purposes other than those of journalism, namely for those of strategic policy and resource allocation. Ratio |
Irrespective of the level at which, within the BBC, it was appraised, the purpose for which the report was held remained the same: it was to enable the BBC to monitor its coverage of the conflict with a view to its making any and all such changes as might further secure its impartiality. Ratio |
At all material times the BBC held the report at least predominantly for purposes of journalism. Ratio |
But, since the appeal proceeds upon the premise that, at the date of its receipt of Mr Sugars request, the BBC also held the report for purposes other than journalism, I turn finally to address the application of the designation to a situation in which the information is held for such dual and opposite purposes. Ratio |
Had I considered that the court was required to choose between the two polarised constructions of the designation in its application to a situation of dual and opposite purposes, I would on balance have chosen that advanced on behalf of Mr Sugar. Ratio |
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