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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Sugar v British Broadcasting Corporation & Anor [2012] UKSC 4 (15 February 2012) URL: https://www.bailii.org/uk/cases/UKSC/2012/4.html Cite as: [2012] WLR 439, [2012] EMLR 17, [2012] 1 WLR 439, [2012] UKSC 4, [2012] WLR(D) 33, [2012] 2 All ER 509 |
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Hilary Term
[2012] UKSC 4
On appeal from: [2010] EWCA Civ 715
JUDGMENT
Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation and another (Respondents)
before
Lord Phillips, President
Lord Walker
Lord Brown
Lord Mance
Lord Wilson
JUDGMENT GIVEN ON
15 February 2012
Heard on 23 and 24 November 2011
Appellant Tim Eicke QC David Craig (Instructed by Forsters) |
Respondent Monica Carss-Frisk QC Kate Gallafent (Instructed by BBC Litigation Department) |
LORD WILSON
A: INTRODUCTION
B: THE FACTS
C: THE FORENSIC HISTORY
(a) the purpose of the designation was "to protect journalistic, artistic and literary integrity by carving out a creative and journalistic space for programme-makers to produce programmes free from the interference and scrutiny of the public";
(b) information held by the BBC fell beyond the scope of the Act only if there was a direct and creative journalistic relationship between it and programme content;
(c) there was such a relationship between the Balen report and programme content;
(d) in this regard it was relevant that those mainly likely to be affected by the report were journalists and editors rather than managers and business advisers;
(e) if, which he did not accept, the report was held for any non-journalistic purpose, it continued to lie beyond the scope of the Act because the journalistic purpose was manifestly dominant; and
(f) had it been impossible to discern which of two such opposite purposes was dominant, he would have applied a rebuttable presumption that the information lay within the scope of the Act.
(a) allowed the BBC's appeal against the Tribunal's jurisdiction decision;
(b) accordingly set aside its journalism decision; and
(c) dismissed Mr Sugar's protective application for judicial review on the ground that the Commissioner's decision had been rational and therefore lawful.
D: THE SCHEME OF THE ACT
26. Section 2 (2) is important for present purposes. It provides:
"In respect of any information which is exempt information by virtue of any provision of Part II, section 1 (1) (b) does not apply if or to the extent that
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."
As the subsection foreshadows, Part II of the Act provides for the exemption of certain categories of information from disclosure. Section 2(3) confers absolute exemption upon various of the categories. The other categories enjoy only qualified exemption: information in such categories is not required to be disclosed only if the test in subsection (2)(b) is satisfied; and the bias of the Act in favour of disclosure is visible in the requirement that the public interest in maintaining the exemption should "outweigh" the public interest in disclosing the information.
"Where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts 1 to V of this Act applies to any other information held by the authority."
"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."
E: "PURPOSES ... OF JOURNALISM, ART OR LITERATURE"
"the BBC, Channel 4 and S4C are public corporations that operate to a defined remit specified in the Royal Charter (BBC) and legislation (Channel 4 and S4C). All three operate independently of Government editorially and to the greatest extent possible in economic and regulatory terms. It might be regarded as anomalous for them to be within the scope of the FOI legislation when the private media (Channels 3 and 5, cable and satellite channels, the Internet, the press and freelances of all sorts) would not."
"Self-critical review and analysis of output is a necessary part of safeguarding and enhancing quality. The necessary frankness of such internal analysis would be damaged if it were to be written in an anodyne fashion, as would be likely to be the case if it were potentially disclosable to a rival broadcaster."
F: THE POLARITIES
G: THE DOMINANT PURPOSE
"Similarly, an enactment may lay down a qualifying condition in terms of the purpose of some person in doing an act as if it were the only purpose possible, whereas it may in the instant case, be in fact, one of several purposes. Here the court will construe the enactment as requiring the main or dominant purpose to be the one specified."
It has to be acknowledged that the two authorities cited in support of the statement represent a slender foundation for the bold and unequivocal terms in which it is couched.
LORD PHILLIPS
i) At all material times the Balen report was held by the BBC predominantly for the purposes of journalism;
ii) On the true construction of Part VI of Schedule 1 to the Act information held predominantly for the purposes of journalism does not fall within the definition, even if the information is held for other purposes as well.
It follows that the BBC is under no duty to disclose the Balen report and that this appeal must be dismissed. The judgments of Lord Wilson and Lord Walker have, however, disclosed an issue that is academic but is none the less of importance. Does the definition mean "information held solely for purposes other than journalism, art or literature" or "information held predominantly for purposes other than journalism, art or literature"?
"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."
LORD WALKER
"it was decided for editorial reasons to change the format of 'Top Gear' so that it became primarily an entertainment programme rather than a consumer programme, [which] increased the production costs to an important degree."
"once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under the Act, even if the information is also held by the BBC for other purposes."
So in effect there are only two categories: one is information held for purposes that are in no way those of journalism, and the other is information held for the purposes of journalism, even if it is also held for other (possibly more important) purposes.
"But that proposition must not be applied too widely, without regard to the way the Act was designed to operate in conjunction with the [Data Protection Act 1998]. It is obvious that not all government can be completely open, and special consideration also had to be given to the release of personal information relating to individuals. So while the entitlement to information is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. The scope and nature of the various exemptions plays a key role within the Act's complex analytical framework."
(The Commons Services Agency case serves to explain the position on freedom of information in Scotland, which is not immediately apparent from FOIA itself. FOIA extends to Scotland and so applies to operations in Scotland of public authorities which operate throughout the United Kingdom; but Scotland also has its own statute applying to Scottish public authorities.)
"But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14. The present is such a case. Even after eliminating inappropriate senses of 'substantial' one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement."
I consider that Davis J was right to regard the present case as falling within that category. He was however mistaken in supposing that the Tribunal had no jurisdiction to hear an appeal, and so he should have treated the Tribunal, and not the Commissioner, as the crucial decision-maker.
"On a broad definition, it could be argued that all of the activities of the BBC are for the purposes of journalism, art and literature, as these are broad descriptions of a substantial part of its broadcast output . . . However, if a very broad definition was intended, there would be little point in including the BBC in Schedule 1, Part VI of FOIA. The BBC could have been omitted altogether from the scope of the Act."
The same point was made by Davis J [2007] 1 WLR 2583, para 55.
"The cost of cleaning the BBC Boardroom is only remotely linked to the product of the BBC."
"In my view, whatever meaning is given to 'journalism' I would not be sympathetic to the notion that information about, for instance, advertising revenue, property ownership or outgoings, financial debt, and the like would normally be 'held for purposes . . . of journalism'. No doubt there can be said to be a link between such information and journalism: the more that is spent on wages, rent or interest payments, the less there is for programmes. However, on that basis, literally every piece of information held by the BBC could be said to be held for the purposes of journalism. In my view, save on particular facts, such information, although it may well affect journalism-related issues and decisions, would not normally be 'held for purposes . . . of journalism'. The question whether information is held for the purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way."
That is the best way forward in order to strike the difficult balance of competing interests for which Parliament must be taken to have been aiming. But it will still leave some difficult decisions for the Commissioner and, on appeal, the Tribunal. There cannot be (in the words of Davis J, para 57) any "unequivocal, bright-line" test.
LORD BROWN
"The Court reiterates its conclusion in Leander v Sweden (1987) 9 EHRR 433 and in Gaskin v United Kingdom (1989) 12 EHRR 36 and, more recently, confirmed in Guerra v Italy (1998) 26 EHRR 357, that the freedom to receive information 'prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him' and that that freedom 'cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to . . . disseminate information of its own motion'."
It is right to observe, before moving on, that the circumstances of those particular cases were that the applicants were attempting to obtain information respectively about their being regarded as a security risk (Leander), about their childhood (Gaskin), about a chemical factory (Guerra) and about long-past Porton Down tests in which they had participated (Roche).
"[The Court] considers that the present case essentially concerns an interference by virtue of the censorial power of an information monopoly with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. . . . Moreover, the state's obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities." (para 36)
"the Court cannot but conclude that the obstinate reluctance of the respondent State's authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness."
"In its earlier case-law the Court has found various acts of the authorities compelling journalists to give up their privilege and provide information on their sources or to obtain access to journalistic information to constitute interferences with journalistic freedom of expression."
The applicant in Goodwin succeeded on the basis that he had been ordered to reveal the identity of a person who had provided him with information on an unattributable basis. The applicant in Nordisk failed because on the particular facts of that case (which it is not here necessary to rehearse) the applicant was not being ordered to disclose its journalistic source of information but rather part of its research material and that, even though the latter "may have a chilling effect on the exercise of journalistic freedom of expression", there it was justified by an overriding requirement in the public interest: assisting in the prosecution of paedophiles.
"Self-critical review and analysis of output is a necessary part of safeguarding and enhancing quality. The necessary frankness of such internal analysis would be damaged if it were to be written in an anodyne fashion, as would be likely to be the case if it were potentially disclosable to a rival broadcaster." (Or, one may add, to anyone else.)
In short I would reject also the second stage of the appellant's argument: the contention that section 3 of the Human Rights Act should be invoked here to limit the information stipulated by the Act to be undisclosable through being held for the purposes of journalism merely to that held for the purpose of safeguarding the BBC's confidential sources.
LORD MANCE