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This appeal requires the Supreme Court to focus closely on the language and legislative purpose of the provisions of the Freedom of Information Act 2000 (FOIA) dealing with public authorities to which that statute has limited application. Ratio |
Without that focus, a long trawl through the Strasbourg jurisprudence on article 10 of the European Convention on Human Rights is of little assistance. Ratio |
The relevant provisions are in section 7 of and Schedule 1 to FOIA. STA |
Section 7(1) provides that 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 the Act is to apply to any other information held by the authority. STA |
Schedule 1, Part VI lists the British Broadcasting Corporation (BBC) in respect of information held for purposes other than those of journalism, art or literature. STA |
A similar form of words appears (in adjectival form) in section 3 of the Data Protection Act 1998, which defines the special purposes as meaning any one or more of the following (a) the purposes of journalism, (b) artistic purposes, and (c) literary purposes. STA |
Section 32 of the Data Protection Act gives a limited exemption where personal data is processed with a view to the publication by any person of any journalistic, literary or artistic material, and the data controller reasonably believes that, having regard in particular to the special importance of the public interest... |
Both sets of statutory provisions are evidently aimed at promoting freedom of expression, the value embodied in article 10 of the European Convention on Human Rights. Ratio |
There is no relevant definition of journalism, art or literature in either statute. Ratio |
The three words are abstract nouns which can be used to describe either an activity or the product of that activity. Ratio |
Journalism is a word introduced into the English language from French in the 19th century. Ratio |
The Oxford English Dictionary gives its primary meaning (by reference to journalist) as the occupation of editing or writing for a public journal. Ratio |
In a loose sense it can cover the production of just about anything published in a newspaper (or, today, broadcast on sound radio or television). Ratio |
But in the context of FOIA, its collocation with art and literature suggests that journalism is used to refer primarily to output on news and current affairs (no doubt including sport, an important part of the BBCs output); and the composite expression journalism, art or literature seems to be intended to cover the who... |
On that comprehensive approach the purposes of journalism, art or literature would be, quite simply, the purposes of the BBCs entire output to the public. Ratio |
Mr Jeremy Clarkson must, it seems, have moved from the pigeonhole of journalism to that of literature when, as Irwin J recorded in British Broadcasting Corporation v Information Commissioner [2009] EWHC 2348 (Admin), [2010] EMLR 121, para 36, it was decided for editorial reasons to change the format of Top Gear so that... |
British Broadcasting Corporation v Information Commissioner [2009] EWHC 2348 (Admin) (the financial information case) was heard by Irwin J immediately after he heard the case [2009] EWHC 2349 (Admin) in which this appeal is brought, and he handed down his judgment in the two cases on the same day, 2 October 2009. PRE |
Important parts of the two judgments are, as Irwin J noted in the first paragraph of each judgment, expressed in identical or very similar terms. PRE |
There is also one other first-instance judgment calling for mention, that is the judgment of Davis J in the first round of Mr Sugars litigation, British Broadcasting Corporation v Sugar [2007] EWHC 905 (Admin), [2007] 1 WLR 2583. PRE |
The judgment of Davis J contains a valuable discussion of the relevant provisions of FOIA but proceeds on the footing that the Information Tribunal (the Tribunal) had no jurisdiction, in the circumstances, to hear an appeal from the Information Commissioner (the Commissioner). PRE |
That premise was later shown by the decision of a bare majority of the House of Lords to be erroneous: [2009] UKHL 9, [2009] 1 WLR 430. PRE |
One of the most important issues of law considered by Irwin J in his twin judgments is whether, as a matter of construction, the word predominantly should in effect be inserted in Schedule 1, Part VI before the phrase for purposes other than those of journalism, art or literature). Ratio |
Irwin J described this (in para 3 of each judgment) as a concession made by the BBC before the Tribunal, but that description depends on the spectators viewpoint. Ratio |
The Court of Appeal (Lord Neuberger MR, para 36) described it as a successful argument. Ratio |
So it is worth looking at how this point developed. Ratio |
Apart from any de minimis principle, which the Court of Appeal (Lord Neuberger MR, para 59) rightly regarded as unhelpful in this context, there are four possible categories of information held by the BBC that need to be considered: (1) information held exclusively for non-journalistic purposes; (2) information held pr... |
Before the Tribunal Mr Sugar argued that the BBCs immunity under Schedule 1 Part VI (as opposed to its possible exemption under other particular provisions of FOIA) was limited to information in category (4). Ratio |
In other words he was insisting on disclosure (apart from particular exemptions) of categories (1), (2) and (3). Ratio |
The BBC did not oppose categories (1) and (2) (so that category (2) could be termed a concession) but opposed disclosure of category (3), and was successful in that argument. Ratio |
Irwin J felt unable to accept the concession, either in the Sugar appeal or in the appeal in the financial information case. Ratio |
He held that category (1) was the only category of information that the BBC had to disclose (again, subject to particular exemptions). Ratio |
His reasons are at paras 44 to 66 of his judgment in the Sugar case and at paras 53 to 73 of his judgment in the financial information case, which are in almost identical terms. Ratio |
The Court of Appeal agreed with his reasoning and conclusions (Lord Neuberger MR, paras 39 to 52). Ratio |
I respectfully agree. RPC |
In my judgment the correct view is that (as Lord Neuberger MR put it at para 44): once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under the Act, even if the information is also held by the BBC for other purposes. RPC |
So in effect there are only two categories: one is information held for purposes that are in no way those of journalism, and the other is information held for the purposes of journalism, even if it is also held for other (possibly more important) purposes. RPC |
That conclusion follows both from FOIAs legislative purpose and from its language. Ratio |
First, legislative purpose. Ratio |
It is common ground that FOIA was enacted in order to promote an important public interest in access to information about public bodies. Ratio |
There are (as Schedule 1 to FOIA reveals) thousands of public authorities, large and small, which are paid for out of public funds, and whose actions or omissions may have a profound effect on citizens and residents of the United Kingdom. Ratio |
There is a strong public interest in the press and the general public having the right, subject to appropriate safeguards, to require public authorities to provide information about their activities. Ratio |
It adds to parliamentary scrutiny a further and more direct route to a measure of public accountability. Ratio |
There is therefore force, in relation to FOIA as well as in relation to the Freedom of Information (Scotland) Act 2002, in the proposition that, as the whole purpose of the 2002 Act is the release of information, it should be construed in as liberal a manner as possible. Ratio |
That is how it was put by Lord Marnoch in Common Services Agency v Scottish Information Commissioner [2006] CSIH 58, 2007 SC 231, para 32, approved by Lord Hope in the House of Lords [2008] UKHL 47, [2008] 1 WLR 1550, para 4. Ratio |
But Lord Hope continued: But that proposition must not be applied too widely, without regard to the way the Act was designed to operate in conjunction with the [Data Protection Act 1998]. Ratio |
It is obvious that not all government can be completely open, and special consideration also had to be given to the release of personal information relating to individuals. Ratio |
So while the entitlement to information is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. Ratio |
The scope and nature of the various exemptions plays a key role within the Acts complex analytical framework. Ratio |
(The Commons Services Agency case serves to explain the position on freedom of information in Scotland, which is not immediately apparent from FOIA itself. Ratio |
FOIA extends to Scotland and so applies to operations in Scotland of public authorities which operate throughout the United Kingdom; but Scotland also has its own statute applying to Scottish public authorities.) Ratio |
In this case, there is a powerful public interest pulling in the opposite direction. Ratio |
It is that public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work in progress. Ratio |
They should also be free of inhibition in monitoring and reviewing their output in order to maintain standards and rectify lapses. Ratio |
A measure of protection might have been available under some of the qualified exemptions in Part II of FOIA, in particular those in sections 36 (Prejudice to effective conduct of public affairs), 41 (Information provided in confidence) and 43 (Commercial interests). Ratio |
But Parliament evidently decided that the BBCs important right to freedom of expression warranted a more general and unqualified protection for information held for the purposes of the BBCs journalistic, artistic and literary output. Ratio |
That being the purpose of the immunity, section 7 and Schedule 1 Part VI, as they apply to the BBC, would have failed to achieve their purpose if the coexistence of other non-journalistic purposes resulted in the loss of immunity. Ratio |
That is confirmed by the language of these statutory provisions. Ratio |
The disclosable material is defined in terms (held for purposes other than those of journalism, art or literature) which are positive in form but negative in substance. Ratio |
The real emphasis is on what is not disclosable that is material held for the purposes of the BBCs broadcasting output. Ratio |
It is the most natural construction, which does not depend on reading in any words. Ratio |
That was the view formed both by Irwin J (see especially paras 55 to 58 and 63 to 65 of his Sugar judgment) and by Lord Neuberger MR (see especially paras 40 to 42, 44 to 46, and 49 of his judgment). Ratio |
Mr Eicke QC was critical of para 49, submitting that it assumed the very answer that the Court of Appeal was seeking to justify. Ratio |
I consider that criticism to be unjustified, though the reasoning was perhaps rather compressed. Ratio |
The unspoken premise is that Parliament must have intended to lay down a workable test, and both an exclusively and a predominantly test would raise almost insoluble problems in their practical application. Ratio |
That is not to say that the test approved by Irwin J and the Court of Appeal is without its difficulties. Ratio |
Parliament has, in trying to provide machinery for determining where the stronger public interest lies, placed a heavy burden on the Tribunal as an expert decision-maker. Ratio |
Davis J cited the well-known speech of Lord Mustill in R v Monopolies and Mergers Commission, Ex p South Yorkshire Transport Ltd [1993] 1 WLR 23, 32-33 (where the relevant statute referred to a substantial part of the United Kingdom): But this clear-cut approach cannot be applied to every case, for the criterion so est... |
In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14. Ratio |
The present is such a case. Ratio |
Even after eliminating inappropriate senses of substantial one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Ratio |
I consider that Davis J was right to regard the present case as falling within that category. Ratio |
He was however mistaken in supposing that the Tribunal had no jurisdiction to hear an appeal, and so he should have treated the Tribunal, and not the Commissioner, as the crucial decision-maker. Ratio |
Irwin J concluded (para 66 of his Sugar judgment) that the Tribunal had erred in law in applying the predominant purpose test. Ratio |
So did Lord Neuberger MR (para 62). Ratio |
So did Moses LJ (para 73), though I have some difficulty with the way his reasoning is expressed on this point, as it seems to come close to conflicting with the reasoning of the majority of the House of Lords in the first round of litigation, [2009] 1 WLR 430. Ratio |
Munby LJ agreed with both judgments. Ratio |
I would therefore dismiss this appeal, but for reasons different from those set out in the judgment of Lord Wilson. RPC |
I would add that I am conscious that this interpretation of the limitation may be seen as conferring on the BBC an immunity so wide as to make the particular statutory redemptions redundant, and leave the BBC almost free of obligations under FOIA. Ratio |
As the Tribunal observed (paras 96 and 102): On a broad definition, it could be argued that all of the activities of the BBC are for the purposes of journalism, art and literature, as these are broad descriptions of a substantial part of its broadcast output . . . Ratio |
However, if a very broad definition was intended, there would be little point in including the BBC in Schedule 1, Part VI of FOIA. Ratio |
The BBC could have been omitted altogether from the scope of the Act. Ratio |
The same point was made by Davis J [2007] 1 WLR 2583, para 55. Ratio |
In my view the correct approach is for the Tribunal, while eschewing the predominance of purpose as a test, to have some regard to the directness of the purpose. Ratio |
That is not a distinction without a difference. Ratio |
It is not weighing one purpose against another, but considering the proximity between the subject-matter of the request and the BBCs journalistic activities and end-product. Ratio |
As Irwin J observed in the financial information case, para 87, in the context of a critique of what was operational: The cost of cleaning the BBC Boardroom is only remotely linked to the product of the BBC. Ratio |
I respectfully agree with the measured comments of Lord Neuberger MR (para 55): In my view, whatever meaning is given to journalism I would not be sympathetic to the notion that information about, for instance, advertising revenue, property ownership or outgoings, financial debt, and the like would normally be held for... |
No doubt there can be said to be a link between such information and journalism: the more that is spent on wages, rent or interest payments, the less there is for programmes. Ratio |
However, on that basis, literally every piece of information held by the BBC could be said to be held for the purposes of journalism. Ratio |
In my view, save on particular facts, such information, although it may well affect journalism-related issues and decisions, would not normally be held for purposes . . . Ratio |
of journalism. Ratio |
The question whether information is held for the purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way. Ratio |
That is the best way forward in order to strike the difficult balance of competing interests for which Parliament must be taken to have been aiming. Ratio |
But it will still leave some difficult decisions for the Commissioner and, on appeal, the Tribunal. Ratio |
There cannot be (in the words of Davis J, para 57) any unequivocal, bright-line test. Ratio |
All of us agree that on any conventional approach to the construction of the Freedom of Information Act 2000 (the Act) and in particular the expression information held for purposes . . . RPC |
of journalism within the meaning of Schedule 1 to the Act, it clearly encompasses the Balen Report (the Report) throughout the whole period that the BBC has held it. RPC |
It is the appellants contention, however, that this approach to the construction of the Act and the consequent non-disclosure of the Report would violate article 10 of the European Convention on Human Rights and that the Court is accordingly bound, consistently with section 3 of the Human Rights Act 1998, to read and g... |
It is this contention that I am here principally concerned to address. Ratio |
Given, however, that a disagreement exists within the Court as to whether information held for the purposes of journalism but held also for other purposes must be subjected to a test as to which purpose is predominant and disclosed if the predominant purpose is non-journalistic, I shall in conclusion briefly address th... |
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