FOI does not require disclosure of BBC report, rules Court of Appeal

The BBC produced the study into how it covered the Middle East in 2003 and 2004. The report was examined by the broadcaster's Journalism Board in late 2004 and was the basis for recommendations made by that Board.

Stephen Sugar sought to use an FOI request to have the report made public, and the BBC resisted, claiming that the report was exempt from disclosure because the FOI Act allows publicly owned broadcasters to keep secret material held "for purposes other than those of journalism, art or literature".

The BBC claimed that the journalism exemption covered the report and refused to disclose it. The Information Commissioner agreed, but on appeal the Information Tribunal said that the report should be published and that it was not exempt from the FOI Act.

The BBC lost an appeal on the Information Tribunal's ruling that it had jurisdiction to hear the case. But it won an appeal in the High Court on the issue of exemption. The Court of Appeal has now agreed with the High Court and Information Commissioner that the report need not be published because of the journalism exemption.

The Information Tribunal had said that the report should be disclosed unless journalism was the main reason that it was held by the BBC. It said that once the report reached the Journalism Board journalism was no longer its main purpose: it was then held for strategic and resourcing reasons.

The High Court disagreed. It said that as long as one of the reasons the report was held was journalism then it should be covered by the FOI Act exemption. The Court of Appeal agreed with the High Court.

"The interpretation favoured by the Tribunal could lead to uncertainty and difficulty," said its ruling. "Deciding which purpose is the dominant purpose would seem to me to involve a rather subjective, and often speculative, exercise. Further, such an exercise could involve other difficulties: if the information is held for three or more (say, four) purposes, would it be enough for the BBC to show that journalism was more dominant than each of the other three taken on their own, or than all the other three taken together?"

The Court of Appeal ruling said that if the material is held for journalism at all then it should be exempt because that exemption was designed to protect the integrity of journalists' freedom of expression and to make sure that public sector broadcasters were not disadvantaged compared to privately owned ones.

"Provided there is a genuine journalistic purpose for which the information is held, it should not be subject to FOIA," it said. "After all, there must be a great deal of information held by the BBC which is not solely held for journalistic purposes, if 'journalism' is given the meaning which the Tribunal accorded to it, and it could well have a chilling effect on BBC journalism and could well operate unfairly on the BBC against its commercial rivals, if any document held for journalistic purposes and another purpose was liable to be disclosed to the public."

The Court said that this approach would save much material whose main purpose is journalistic from being disclosed almost by accident.

"If information held by the BBC for some purpose in addition to the purposes of journalism was disclosable, it would almost be a matter of happenstance if information held for the purposes of journalism was or was not within the ambit of FOIA," said the ruling. "It would seem somewhat surprising if information, not otherwise disclosable, became disclosable merely because, as a result of some development, as well as being held for purposes of journalism, it was also now held for another, perhaps less significant, purpose."

The Court said that the Information Tribunal made a mistake when saying that information was only journalistic when its 'dominant purpose' was journalism. It also said the Tribunal made a mistake when it said that the purpose of the report changed once it was submitted to the Journalism Board.