Between: Steven Sugar (appellant) (1)the British Broadcasting Commission (respondents) (2) The Information Commissioner

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeThe Master of the Rolls,Lord Justice Moses,Lord Justice Munby
Judgment Date23 June 2010
Neutral Citation[2010] EWCA Civ 715
Docket NumberCase No CO/7618/2006

[2010] EWCA Civ 715

IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT The Hon Mr Justice Irwin

Before:the Master Of The Rolls

Lord Justice Moses

and

Lord Justice Munby

Case No CO/7618/2006

C1/2009/2326

Between: Steven Sugar
appellant
(1)the British Broadcasting Commission
respondents
(2) The Information Commissioner

Tim Eicke and David Craig (instructed by Forsters LLP) for

Mr Sugar Monica Carss-Frisk QC and

Jane Collier (instructed by British Broadcasting Commission) for the BBC

Hearing date: 17 th May 2010

The Master of the Rolls

The Master of the Rolls:

1

The issue on this appeal is whether the Information Tribunal (“the Tribunal”) was right, or at least entitled, to rule that a report prepared by Michael Balen, which analysed the BBC's news coverage of the Middle East, and in particular the conflict between the Israelis and the Palestinians, was “held [by the BBC] for purposes other than those of journalism, art or literature” within the meaning of part VI of schedule 1 to the Freedom of Information Act 2000 (“ FOIA”), and accordingly should be produced by the BBC pursuant to a request made by Steven Sugar pursuant to the section 8 of FOIA. Irwin J held that the Tribunal had erred in law, and reversed their decision; Mr Sugar now appeals to this court.

The Freedom of Information Act 2000

2

According to its title, section 1 of FOIA gives a “general right of access to information held by public authorities”. Section 1(1) is in these terms:

“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.”

Section 1(4) makes it clear that “the information in question” is, at least normally, information which is “held at the time the request is received”.

3

A “public authority” is defined in section 3(1)(a)(i) as including, “… any body which, any other person who, or the holder of any office which … is listed in Schedule 1 …”. Schedule 1 to FOIA has several parts, and part VI, which is entitled “Other Public Bodies and Offices: General”, includes the following:

“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…”.

4

Section 7 of FOIA is in these terms:

“(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…”.

5

Section 2 explains that the provisions of Part II of FOIA (incorporating sections 21 to 44) contain exemptions from the duty to disclose; in some cases the exemption extends to the obligation to disclose whether the information is held at all, and in others it extends only to the obligation to disclose; in some cases, the exemption is absolute, and in others it depends on balancing the public interest in disclosure against the public interest in non-disclosure.

6

It is worth referring briefly to two of the sections in Part II of FOIA. Section 36 is headed “Prejudice to effective conduct of public affairs” and, by virtue of subsection (2)(b), it extends to information disclosure of which “in the reasonable opinion of a qualified person [in this case, we were told, designated as the BBC itself], disclosure of the information under this Act”:

“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.”

Secondly, there is section 43, which is headed “Commercial interests”, and subsection (2) of that section provides that “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).”

7

Where a person is dissatisfied with the way in which a request under FOIA is being, or has been, dealt with, he or she (as a “complainant”) may make an application under section 50 to the Information Commissioner (“the Commissioner”), who must issue a “decision notice”. By virtue of section 57, either the complainant or the public authority may appeal against a decision notice, and such an appeal is heard by the Tribunal, who, pursuant to section 58(1), can allow the appeal either on the grounds that the decision notice was “not in accordance with the law” or that the Commissioner “ought to have exercised his discretion differently”; the Tribunal also is given power by section 58(2) to “review any finding of fact on which the notice was based”. Section 59 gives a right to appeal against any decision of the Tribunal “on a point of law”, in this jurisdiction, to the High Court.

The genesis and use of the Balen Report

8

From about the middle of 2003, the BBC news coverage of the Middle East was being publicly scrutinised by various lobby groups. Richard Sambrook, the Director of BBC News at the time, decided to ask a senior journalist to consider the issue, and to report on the BBC's coverage of the Middle East, and in particular of Israeli and Palestinian affairs. He asked Malcolm Balen, who had been editor of the BBC Television's Nine O'Clock News, and had had wide journalistic experience, to carry out this task.

9

In October 2003 Mr Balen agreed to act as the BBC's “Middle East consultant in news” for a year from 1 November 2003. His post was an unusual one: while defined as being “a senior editorial adviser”, it had no formal editorial or managerial function. During the first four months, he delivered reports, on average every three weeks, to Mr Sambrook, in which he addressed various complaints about the BBC's Middle East coverage. For that purpose, he discussed the issue widely with internal editors and journalists, as well as with representatives of lobby groups. From about February 2004, Mr Balen concentrated on writing his report.

10

Mr Sambrook received a draft of the Balen Report in June 2004, and on 5 July a later draft was sent to Mr Byford, then the Director of BBC World Service. It seems clear that the report was completed at some point in July 2004. In his evidence to the Tribunal, Mr Balen described the aim of his report as twofold, namely:

“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.”

11

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

“I was preparing it in order to improve BBC journalism, identify where we were getting it right or wrong, irrespective of ……. 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.”

12

Following the resignation of the Chairman and the Director General as a result of the criticisms contained in the Hutton report, the BBC was reorganised. Mr Byford became Deputy Director General in January 2004 and a new Director General, Mark Thompson, was appointed in June 2004. In August 2004, Mr Sambrook became Director...

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