The BBC, freedom of information and appeals against the Tribunal

Jeremy Phillips

Last week, in BBC v Information Commissioner [2009] EWHC 2348 (Admin), Mr Justice Irwin in the Administrative Court ruled that, under the Freedom of Information Act 2000 Sch.1, Part VI, the BBC had no obligation to disclose information held to any significant extent for the purposes of journalism, art or literature, regardless of whether the information was also held for other purposes. The judge also considered that this result was irrespective of whether the “predominant purpose for holding the information” test was applied or not.

In this action Irwin J was hearing an appeal against the decision of the Information Tribunal, affirming four earlier decisions of the Information Commissioner that the BBC was obliged to disclose certain financial information concerning its programming budgets. In each case the BBC had refused the request for disclosure on the basis that the information was held predominantly for the purposes of journalism, art or literature. The Commissioner considered that the information supported the BBC’s charter obligations, and that the in-house programme costs and talent costs information served to enable the BBC to predict with some certainty the future costs of engaging talent rather than producing programmes in-house; he accepted that the requested information supported the creation of programme content but concluded that the information was held predominantly for operational purposes.

The BBC appealed to the Information Tribunal which held that, with one exception, the information requested was held predominantly for purposes other than those of journalism, art or literature within the meaning of the Freedom of Information Act 2000 Sch.1 Part VI. The BBC had previously submitted that the test under the schedule required qualification by necessary implication, by inserting the adverb “predominantly” before the words “for purposes” and the hearings before both the Commissioner and the Tribunal were conducted on that basis. The parties indicated that they wished the court to consider the tribunal’s decision on the basis that the predominant purpose test was the law.
Irwin J allowed the BBC’s appeal on the following basis:
* There were only two possible readings of the test in Sch.1 Part VI: either the phrase “held for purposes other than” could mean “held for purposes apart from or in addition to” or it could mean “held for purposes apart from and not including”. Of the two, the latter was preferable.
* While there were valid policy arguments in support of a predominant purpose test, they could not justify departing from the language of the Act and constructing a separate and different test. The predominant purpose test was inconsistent with either reading of the statutory language and was not the law.
* The words in the schedule meant that the BBC had no obligation to disclose information held to any significant extent for the purposes of journalism, art or literature, regardless whether the information was also held for other purposes. If the information was held for mixed purposes, including to any significant extent the purposes listed in the schedule or one of them, the information was not disclosable.
* Even applying the predominant purpose test, the Commissioner’s decision had to be quashed. It was hard to say that information held for operational purposes was not held for the purposes of journalism, art or literature.

The judge added a comment regarding the role of the court in its appellate function vis-a-vis the Information Tribunal:

“84 The Commissioner notes that the Tribunal is set up under the Data Protection Act 1998 as a specialist tribunal, comprising a majority of members with particular experience which enables them to represent the interests both of those who make Freedom of Information Act requests and the public authorities which must respond to them. The Commissioner also emphasises the point that the Tribunal had the benefit of hearing oral evidence, whereas the High Court does not. A similar approach was adopted by Mr Justice Wyn Williams in Department for Business Enterprise and Regularity Reform v O’Brian and The Information Commissioner [2009] EWHC 164 (QB) – see paragraph 32 where he says:

“A court is usually slow to find that a specialist tribunal has failed to afford appropriate weight to factors relevant to its decision. …

85 … Firstly … this specific caution is confined to allegedly perverse findings of fact and does not extend to the law,…. Secondly, where the law and fact are related in a complex way, as I find they are in the application of the formulation of the Schedule to the Act, and where the application of the legal formulation is new and untested, it maybe appropriate to intervene in relation to findings somewhat more readily than in the context of a case … where both law and practice are well established”.

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