The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins

The application of FOIA to public service broadcasters

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.

House of Lords Judgment in Sugar v BBC

In Sugar v BBC  [2009] UKHL 9, the House of Lords has delivered an important judgment on the application of FOIA to so called ‘hybrid authorities’. The case concerned a request which was made by Mr Sugar in January 2005 for disclosure of a report which was held by the BBC and which concerned the BBC’s coverage of the Middle East. The BBC refused to release the report on the grounds that: (a) it was only subject to a duty to disclose information under section 1 FOIA to the extent that it was a ‘public authority’ for the purposes of that section; (b) part IV of schedule 1 to FOIA provides that the BBC is a ‘public authority’ only ‘in respect of information held for purposes other than those of journalism art or literature’; (c) the report was held for the purposes of journalism and, hence, the section 1 duty was not triggered in respect of the report. The Commissioner agreed with the BBC’s analysis. He went on to conclude that, because the BBC could not be treated a ‘public authority’ for the purposes of Mr Sugar’s request, he had no powers under section 50 FOIA to issue  a decision notice in respect of Mr Sugar’s complaint. On appeal by Mr Sugar to the Information Tribunal, the BBC and the Commissioner argued that the Tribunal had no jurisdiction to hear the appeal as no decision notice had been issued under section 50. The Information Tribunal allowed Mr Sugar’s appeal against the Commissioner’s decision. It held that the Commissioner’s decision was a decision notice under section 50(3); that the BBC was a public authority for the purposes of section 1 FOIA and that the report was not held for the purposes of journalism. The BBC sought a judicial review of the Tribunal’s decision. That claim was upheld at first instance and on appeal to the Court of Appeal. Mr Sugar appealed to the House of Lords.

In a majority judgment (Lord Hoffman and Lady Hale dissenting), the House of Lords held that the Tribunal’s decision was sound in law. Importantly, the House of Lords found that the Commissioner had erred in concluding that Mr Sugar had not made a request under section 1 FOIA merely because the nature of the requested information. It found that, when dealing with ‘hybrid authorities’ such as the BBC (i.e. authorities which are only public authorities under FOIA for certain purposes), it would be impractical for the Commissioner to decide whether he had jurisdiction to consider a complaint simply by referring to the nature of the requested information. The correct approach would be for the Commissioner to treat hybrid authorities as always being ‘public authorities’ for the purposes of section 1, irrespective of the nature of the requested information. On this approach, the Commissioner would have jurisdiction to decide a complaint brought by the applicant, albeit that he would have to have regard to the provisions of schedule 1 as and when he was deciding whether the authority erred in refusing to disclose the requested information.  Notably, Lord Phillips commented on an obiter basis that, where information not falling within the scope of FOIA was requested by an applicant, a hybrid authority was lawfully entitled under FOIA to say to the applicant that it did not hold the requested information, even if in physical terms it did hold the requested information. Lord Phillips opined that this result was permitted by section 7 FOIA (para. 33).

In their dissenting judgments Lord Hoffmann and Lady Hale took a very different view of the matter. They concluded that schedule 1 FOIA defined the circumstances in which a body would be a ‘public authority’ for the purposes of section 1 and, in the case of the BBC, those circumstances did not include where the information was held for the purposes of journalism, art or literature; that the information requested by Mr Sugar was held for the purposes of journalism; that the BBC was accordingly not a ‘public authority’ under FOIA for the purposes of the request made by Mr Sugar; and, hence, that the Commissioner had been right to conclude that he had no jurisdiction in respect of Mr Sugar’s complaint. The Commissioner, who supported Mr Sugar’s case before the High Court and the Court of Appeal, was not a party to the appeal to the House Lords. 11KBW’s Ben Hooper represented the Commissioner in the High Court and the Court of Appeal.

The judgment: