16 February 2012 by Julian Milford

The Supreme Court has given judgment yesterday (15 February 2012) in Sugar v BBC [2012] UKSC4. The Supreme Court’s judgment in Sugar represents the last stage in a 7-year battle waged by Mr Sugar (and, following his death, the representative of his estate) to compel the BBC to disclose the “Balen report” under FOIA. This was an internal report from 2004 about the quality and impartiality of the BBC’s coverage of Middle Eastern affairs, which dealt among other matters with complaints that the BBC was biased against Israel. Mr Sugar was a well-known solicitor and supporter of the State of Israel, who considered that the BBC’s coverage of the conflict between Israel and Palestine was seriously biased.

FOIA applies to the BBC only in respect of information “held for purposes other than those of journalism, art or literature”: see Part VI of Schedule 1 FOIA. On the assumed premise that the Balen report was held by the BBC partly for the purposes of journalism, and partly for purposes other than those of journalism, the question for the Supreme Court was whether information held by the BBC with a dual purpose was within the scope of the Act.

Answering that question required the Court not only to analyse the wording and purpose of the Act, but also to reason whether Mr Sugar’s rights under Article 10 ECHR required any different outcome. Lord Brown’s reasoning in particular is of general importance as regards the right of access to information under Article 10, and not relevant simply to the narrow question of statutory interpretation in Sugar.

The statutory interpretation point: information held for dual purposes

Parsing the phrase “information held for purposes other than those of journalism” allowed for a number of possible approaches. Approach (1) would be that only information held exclusively for journalistic purposes would be outside FOIA. Approach (2) would be that information held predominantly, but not exclusively, for journalistic purposes would also be outside FOIA (i.e. a “dominant purpose” test). Approach (3) would be that only information held exclusively for non-journalistic purposes would be within FOIA. So if information was held for purposes that included journalism (even as a subsidiary purpose), this would bring the BBC outside FOIA. Mr Sugar argued for approach (1). The BBC argued for approach (3), with approach (2) as a fall-back.

The SCJs held (Lord Wilson dissenting) that approach (3) was correct. That was above all because the intention behind the exclusion was to protect the freedom of public service broadcasters to gather, edit and publish news without the inhibition of disclosure obligations. Per Lord Walker (representing the views of the majority), Parliament decided that the BBC’s right to freedom of expression warranted a more general and unqualified protection for information held for journalistic purposes, than was available under the exemptions in Part II of FOIA. That purpose would be frustrated if the coexistence of non-journalistic purposes resulted in the loss of immunity. So if any part of the BBC’s purpose in holding material was its broadcasting output, it would not be disclosable.

Article 10 ECHR

The SCJs all broadly agreed that an analysis of Mr Sugar’s possible rights under Article 10 ECHR did not carry his case any further. Of particular interest, however, are the conclusions of Lord Brown (giving the only detailed reasoning on the point) on why that was so.

Mr Sugar asserted that the ECtHR had moved towards a general recognition of a right of access to information under Article 10 in three recent cases (Matky v Czech Republic, Tarsasag v Hungary, Kenedi v Hungary). Failing to disclose the report to him interfered with that right: and such interference was not necessary or proportionate.

Lord Brown did not attempt to define exactly what right of access Matky, Tarsasag and Kenedi laid down. However, his starting point was to note the well-established line of Strasbourg jurisprudence, encapsulated in the unanimous Grand Chamber decision in  Roche v UK (2005) 42 EHRR 599, in which the ECtHR has found that Article 10 does not impose on States any positive obligations to disseminate information of their own motion. Lord Brown pointed out that Tarsasag was a decision of the Second Section of the ECtHR; that it relied for its assertion that the ECtHR had moved towards a broader interpretation of the notion of freedom to receive information on Matky alone; and that Matky was a case in which the complainant sought information under a general right to information under the Czech legal system, and in which the ECtHR held that any interference with his rights flowing from the refusal to disclose information was justified. Matky, said Lord Brown, was an “unpromising foundation on which to build any significant departure from what may be called the Roche approach…”

Whatever the significance of the Tarsasag line of authority, Lord Brown was certain that it did not establish any interference with the freedom to receive information under Article 10(1), where a public authority, acting consistently with domestic legislation governing the nature and extent of obligations to disclose information, refused access to documents. In any event, said Lord Brown, it was open to a State to legislate a blanket exclusion for disclosure of information held for the purposes of journalism. Such an exclusion would be proportionate; so that even if there were any interference with Article 10(1), it was justified under Article 10(2).

Plainly, Lord Brown’s reasoning on the scope of Article 10(1) is highly significant for the relevance of Article 10 to disclosure of information covered by FOIA exemptions generally, as well as to the more narrow issue of the BBC’s FOIA obligations. It remains to be seen how that reasoning plays out.

Finally, in this context, I note a number of forthcoming cases in which related issues concerning the applicability of Article 10 in the FOIA context will be considered. Those are Evans v 7 Government Departments and IC (EA/2010/0014) (judgment of UT awaited – involving Jonathan Swift QC, Tim Pitt-Payne QC and Julian Milford of 11KBW); Kirkhope v IC and National Archives (EA/2011/0185) (part-heard in the FTT – involving Jonathan Swift QC, Amy Rogers, Robin Hopkins and Joe Barrett of 11KBW); Kennedy v Charity Commission (due to be heard in the Court of Appeal on 21/22 February 2012 – involving Karen Steyn, Ben Hooper and Rachel Kamm of 11KBW); APPGER v ICO and FCO (due to be heard in the FTT on 27/28 February 2012, involving Karen Steyn, Joanne Clement and Robin Hopkins of 11KBW); R(Guardian News) v City of Westminster Magistrates Court (heard in the Court of Appeal on 7 February 2012 – judgment reserved).