Sugar and another v British Broadcasting Corporation (No 1)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Davis |
| Judgment Date | 27 April 2007 |
| Neutral Citation | [2007] EWHC 905 (Admin) |
| Docket Number | Case No: CO/7613/2006 CO/7616/2006 CO/7618/2006 CO/787/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2007 |
[2007] EWHC 905 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE INFORMATION TRIBUNAL
The Honourable Mr Justice Davis
Case No: CO/7613/2006
CO/7614/2006
CO/7616/2006
CO/7618/2006
CO/787/2007
Mr Steven Sugar (In Person)
Mr Ben Hooper (instructed by Mark Thorogood, Information Commissioner's Office) for the Information Commissioner
Miss Monica Carss-Frisk QC and Miss Kate Gallafent (instructed by Jaron Lewis, BBC Litigation Dept) for the British Broadcasting Corporation
Hearing dates: 27 th and 28 th March 2007
Mr Justice Davis:
Introduction and Background
These proceedings raise, among other issues, questions of interpretation of the Freedom of Information Act 2000. I was told during the hearing before me that this is the first time that the provisions of that Act have been considered under appeal to the High Court. I do not suppose that it will be the last.
Because of the nature of the initial challenge raised – which goes to the jurisdiction of the Information Commissioner and the Information Tribunal – these proceedings have also become procedurally complex. The reason is this.
A number of persons and lobby groups has in the past expressed the view that the reporting by and news coverage of the BBC in relation to the Middle East and in particular the conflict between Israel and the Palestinians was not even handed. Because of the concerns raised the BBC decided to ask Mr Malcolm Balen, a very experienced journalist, to advise on the coverage by the BBC of Middle Eastern matters. During 2004 Mr Balen produced an internal written report. This was eventually placed for consideration by the Journalism Board of the BBC on 9 th November 2004. Subsequently in 2005 a panel, chaired by Sir Quentin Thomas, was appointed by the Board of Governors of the BBC to provide an external independent review of BBC reporting of Middle East affairs. That panel reported in April 2006. In the meantime the BBC had created the post of Middle East Editor, Mr Jeremy Bowen being appointed and taking up his post in June 2005.
The Balen Report has never been published. Mr Sugar wished and wishes to see it. He has taken the view that he was entitled to see it under the provisions of the Freedom of Information Act 2000 ("the FOIA"). He made a written request to the BBC accordingly on 8 th January 2005. The response of the BBC was to the effect that the Balen Report directly impacted on the BBC's reporting of crucial world events and that the FOIA did not apply.
Mr Sugar was dissatisfied with this response. He complained to the Information Commissioner ("IC") on 18 th March 2005. The IC then corresponded extensively with Mr Sugar and, separately, with the BBC. The IC also studied the Balen Report for himself. (It was indicated on behalf of the BBC that the Balen Report was available for me to read should it become necessary and should I wish to do so. But in the event, and no doubt because of the matters actually raised before me, no one asked me to read it. In the circumstances – and when Mr Sugar himself, of course, had not seen it – I therefore did not myself read the Balen Report). By a detailed letter of 24 th October 2005 the IC set out his provisional view that the Balen Report was held for the purposes of journalism, art or literature (what before me was, for shorthand convenience, called "the derogation"); and that in the circumstances the BBC was not a public authority under the FOIA in respect of Mr Sugar's request and was not obliged to release the contents of the Balen Report. Mr Sugar did not seek to submit to the IC any further comments (although invited to do so); and on 2 nd December 2005 the IC confirmed his final decision that the Balen Report was not disclosable, on the basis previously indicated in the provisional decision letter. The letter concluded with the words: "I would also like to take this opportunity to inform you of your right to request a Judicial Review of our decision."
Mr Sugar did not at that time seek a Judicial Review of that decision. Instead on 30 th December 2005 he sought to appeal to the Information Tribunal ("the Tribunal") invoking the provisions of s.50 of the FOIA for that purpose. The position of the IC at that time was that Mr Sugar had no right of appeal under s.50, that the IC had served no appealable decision notice and that the Tribunal had no jurisdiction to entertain such an appeal. That also was the view of the BBC.
A preliminary issue was directed by the Tribunal on the jurisdiction point, it having indicated an initial view that it did have jurisdiction. A hearing was then held on 14 th June 2006 and a ruling given. It appears that the IC had by then had a change of mind and was not now disputing the jurisdiction of the Tribunal. The BBC, however, was.
By its decision dated 14 th June 2006, and formally issued on 29 th August 2006, the Tribunal ruled that it did have jurisdiction to entertain Mr Sugar's appeal. Having so ruled, the Tribunal then proceeded to deal with the substantive issue raised on the appeal (which in argument before me was called "the journalism issue"). The hearing in total before the Tribunal lasted some 3 days. A good deal of evidence – both written and oral – was adduced, much of which had not been deployed before the IC. Mr Sugar appeared in person at that hearing; the IC and the BBC was each represented by counsel. At the hearing the BBC was arguing for a broad approach to the phrase "for the purposes of journalism" by reference to the provisions of the FOIA (to which I will come). Mr Sugar was arguing for a narrower approach.
The decision of the Tribunal on the journalism issue, also issued on 29 th August 2006, set out a full exposition of the legislative history of the FOIA and also gave a detailed summary of the evidence and arguments deployed. The Tribunal indicated that, in effect, the Balen Report could indeed be said to have been created for the purposes of journalism. But it decided, on its view of the evidence, that by the time of Mr Sugar's request of 8 th January 2005 the Balen Report was not held for the purposes of journalism. Perhaps the nub of the Tribunal's reasoning is to be found in paragraph 133 of its decision:
"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 on 9 th November 2004, as a formal report, it was being used for, and hence was held for, wider purposes of strategic policy and resource allocation, which lie outside the scope of the derogation."
It accordingly gave as its decision that at the time of Mr Sugar's request for a copy of the Balen Report it was "held for purposes other than those of journalism, art or literature".
The BBC was, and is, aggrieved at that decision, taking the view that it was unsustainable on the evidence and arguments advanced before the Tribunal and was contrary to the provisions of the FOIA. In addition, however, the BBC also maintained its view that the Tribunal had no jurisdiction to entertain the purported appeal and that Mr Sugar's remedy lay in seeking Judicial Review of the IC's original decision (which, of course, had also been the initial view of the IC). This is where the procedural complexities arise. Section 59 of the FOIA permits an appeal from a decision of the Tribunal on a point of law to the High Court. The BBC has thus sought to appeal to the High Court on both the jurisdiction decision and the journalism decision. But, in part to meet any point that a lack of jurisdiction is asserted, the BBC also as a precaution sought to challenge the decisions of the Tribunal by concurrent Judicial Review proceedings.
For his part Mr Sugar – to meet the possibility that the court might hold that the Tribunal had had no jurisdiction – has rather late in the day, on the 1 st February 2007, issued his own Judicial Review proceedings, challenging the original decision of the IC dated 2 nd December 2005 (although also stating that such decision had been "reaffirmed" by the IC on various dates subsequently during 2006). That matter came before me as an application for permission. Given the circumstances, the IC and the BBC have, very fairly, raised no point as to delay and I grant the necessary extension of time. To the extent that Mr Sugar sought at the hearing before me to amend the claim I will deal with the proposed amendments later in this judgment.
At the hearing before me the IC was represented by Mr Hooper. The BBC was represented by Miss Carss-Frisk QC and Miss Gallafent. Mr Sugar appeared before me in person. I should explain that Mr Sugar had previously obtained from Forbes J a protective costs order in his favour. That, among other things, imposed strict requirements as to the length of time in which he could orally address the court. In part because of that he has...
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