UK: Freedom Of Information Act: Public Service Broadcasting

The High Court, in its first judgement on the Freedom of Information Act 2000("FOIA"), has considered a fundamental jurisdictional issue in addition to widening the scope of what information falls within the ambit of "journalism", to which the Act does not apply, giving public service broadcasters greater rights to keep information from being released.

In an action by Steven Sugar, the BBC succeeded in its appeal against the Information Tribunal’s decision that the BBC ought to have provided Sugar with the information he requested on a report regarding news coverage of the Middle East.

The FOIA requires public authorities to disclose information it holds if requested to do so by a member of the public. The BBC is deemed to be a "public authority" for the purposes of the FOIA other than "in respect of information held for purposes other than those of journalism, art or literature".

The BBC rejected Sugar’s request for disclosure of the report on the grounds that it was of a journalistic nature and therefore not covered by the FOIA. Sugar complained to the Information Commissioner who agreed with the BBC and then appealed to the Information Tribunal who reversed the Information Commissioner’s decision.

On appeal by the BBC, the High Court held that the decision as to whether information was of a journalistic nature, and therefore outside the scope of the FOIA, was to be taken by the Information Commissioner on a case by case basis. Further, the High Court held that because the Information Commissioner had decided that the information in this case did not fall within the scope of the FOIA, Sugar’s appeal was therefore not within the jurisdiction of the Information Tribunal but one for judicial review proceedings. This removed a method of appeal for the public with respect to requests under the FOIA but brought good news to public service broadcasters because it reduces the likelihood of journalistic information in their hands being statutorily disclosed to the public.

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Under section 1(1) of the Freedom of Information Act 2000 (FOIA), any person making a request for information to a public authority is entitled:

• to be informed in writing by the public authority whether it holds the information; and

• if so, to have that information communicated to him.

A "public authority" includes "any body which, any other person who, or the holder of any office which, is listed in Schedule 1 [to the FOIA]". The BBC is listed in Schedule 1 only "in respect of information held for purposes other than those of journalism, art or literature". No definitions of "journalism", "art" or "literature" are contained in the FOIA.

In January 2005, Sugar requested from the BBC a copy of a report regarding the BBC's news coverage of the Middle East. The BBC rejected the request as it included information of a journalistic nature and was therefore not covered by FOIA.

Where an applicant is dissatisfied with the response of a public authority, they can apply to the Information Commissioner (Commissioner) for a decision under section 50 FOIA. Appeals against a decision notice issued by the Commissioner go to the Information Tribunal (Tribunal). Section 59 provides for appeals from the Tribunal to the High Court, and states that any party may appeal from the Tribunal's decision on a point of law.

Sugar appealed to the Tribunal against the Commissioner’s decision rather than seeking judicial review. The Tribunal ruled that it did have jurisdiction to hear Sugar's appeal and allowed the appeal finding that the Report was held for purposes other than those of "journalism, art or literature". The Tribunal drew a distinction between "functional journalism" and "the direction of policy, strategy and resources that provide the framework within which the operations of a public service broadcaster take place": functional journalism was covered by the Schedule 1 derogation, policy and strategy were not. Following the decision, the BBC appealed to the High Court under section 59 of the FOIA on two grounds, that the Tribunal did not have jurisdiction to consider Sugar's appeal (it should have been done by way of judicial review), and secondly, that the Tribunal's decision that the journalism derogation in Schedule 1 to the FOIA did not apply was wrong on the evidence, and was contrary to the provisions of the FOIA.

At the same time, the BBC also challenged the Tribunal's decision by judicial review proceedings and Sugar, in turn, issued judicial review proceedings challenging the Commissioner's original decision.

This is the first time that the High Court had considered the provisions of the FOIA. Davis J held that the Tribunal did not have jurisdiction to consider Sugar's appeal from the Commissioner's decision and that he should have issued judicial review proceedings at that time.

Jurisdiction issue

Davis J, in interpreting the statutory provisions of the FOIA held that the BBC was a public authority subject to the requirements of Part I to V of the FOIA only in relation to information held by it for purposes other than "journalism, art or literature". The FOIA did not state that the BBC was a public authority for all purposes under the FOIA, with limited exceptions or exemptions then imposed.

The judge was in agreement with the BBC's arguments that since the Commissioner had found that, in relation to this case, the BBC was not a public authority under the FOIA there had been no "request" to a public authority, therefore, the Commissioner could not have issued a "decision notice" that could have been the subject of an appeal to the Tribunal.

This interpretation of the FOIA concerning appeals does fit in with section 50(2)(a) which sets out other circumstances, such as undue delay, where the Commissioner could decline to make a decision, resulting in judicial review being the only challenge the decision.

Sugar's key argument in his application for judicial review was that the Commissioner had made an error of law in finding that the Report fell within the derogation in Schedule 1. He argued that the Commissioner had interpreted the meaning of the phrase "for the purposes of journalism" too broadly and that the derogation should not apply to the management of journalism; that if there were multiple purposes for holding the information then it could not be held "for the purposes of journalism". Davis J said that this approach was too narrow, would be impractical and would not fit with an underlying purposes of the FOIA, to protect freedom of journalistic expression for public media authorities such as the BBC.

He agreed with the BBC's argument that journalism extended to (journalistic) activity, as well as (journalistic) product. The FOIA had deliberately not defined "held for purposes other than those of journalism, art or literature" and Davis J considered that it was an impossible and pointless exercise to judicially define such phrase. It was an assessment for the Commissioner to make on a case-by-case basis.

Davis J concluded that the Commissioner's decision was lawful and one properly open to him on the evidence before him and dismissed Sugar's criticisms of the decision.

This decision will be come as a relief to public service broadcasters such as the BBC as the scope of the Schedule 1 derogation has been kept wide. The applicability will be done by the Commissioner on a case by case basis, however, Davis J made it clear that the BBC would not be able to argue that all the information it held would fall within the derogation since its business related entirely to collecting and transmitting news.

The decision on the jurisdiction issue has made the process of appealing against the Commissioner’s decision more complex in certain circumstances. As the Commissioner found that the Schedule 1 derogation did apply, Sugar could not have appealed to the Tribunal and he should have issued judicial review proceedings. Had the Commissioner held that the derogation did not apply, the BBC would have been able to appeal to the Tribunal under section 57 of the FOIA, as there would have been a "decision notice" concerning a "public authority".

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 01/06/2007.