Two High Court judgments were handed down last week on what has become known as the BBC’s “derogation” – its limited entry in Sch. 1 to FOIA, under which FOIA applies to the BBC only “in respect of information held for purposes other than those of journalism, art or literature”. Channel 4 and S4C (the Welsh television channel) have entries in Sch. 1 to the same effect.

 

The cases were Sugar v. BBC and BBC v. Information Commissioner. The former concerned a request for an internal BBC report into Middle East reporting, the latter concerned four sets of requests for various items of financial information relating to the BBC’s programme output. In both cases, Irwin J rejected the submission advanced by all parties that a test of dominant purpose should be used when applying the derogation (i.e. that where information was held for a variety of purposes, it would outside FOIA if it was predominantly held for the purposes of “journalism, art of literature”). Instead, Irwin J applied a de minimis approach and held that, on a proper construction of the derogation, “the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes.” (See para. 65 of Sugar).

 

It is as yet unclear whether this aspect of the judgments will be challenged on appeal. Unless and until it is, it would seem that the scope for applying FOIA to information held by the public service broadcasters is more limited than was previously thought to be the case.