Balen report ruling shows appealing FoI rulings can be tough

On 27 April, the BBC won a High Court action that negates an Information Tribunal decision which would have given Steven Sugar, a member of the public, access to an internal report on the Corporation's Middle East coverage.

The judge ruled that the tribunal had no jurisdiction to hear an appeal from the Information Commissioner, and so could not compel the BBC to release the Balen Report into allegations of anti-Israeli bias in news programming.

This judgment has shown it is not always straightforward for individuals to appeal against Information Tribunal decisions without resorting to the more costly route of Judicial Review.

Although definitive as far as this action is concerned, it is not the end of the story. Before this judgment, Sugar renewed his request for disclosure under the Act based on the fact that the BBC had changed the purpose for which it holds the Balen Report – from journalistic to management purposes. This change of use could yet lead to release of the report.

What else is significant about the judgment? Unless it is overturned, it has clarified the extent to which the BBC (and, consequently, Channel 4) can be exempted under the Act, but on the known facts, the result might have been expected.

The BBC is a public authority under Schedule 1 of the Act, which extends the FoIA to "the British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature". The categories are not defined.

Because of its language, the Act does not confer the right of appeal to the Information Tribunal against the decision of the Information Commissioner as argued by Sugar because the BBC lay outside the definition of a "public authority" for the purposes of the Act under its specific derogation.

While the judge had sympathy with the inconvenience of this result, he understood that the Information Commissioner could only make a decision on the evidence before him at the time: "The context and circumstances in which the issue arises need to be considered; and by reference to the factual situation in each case."

He was therefore unwilling to define "the meaning of the phrase ‘held for the purposes other than those of journalism, art or literature' – which the FoIA itself conspicuously has not sought to define".

Sugar's renewed request for disclosure of the Balen Report and renewed complaint against the finding of the Information Commissioner may well succeed. The emotive subject matter of the report would then lead to far more column inches than this judgment has attracted.

There is plenty in the findings of Mr Justice Davis to encourage Sugar. In a Decision Notice of 14 March 2007 relating to the BBC, the Information Commissioner acknowledges the concept of the "dominant purpose" test for which the material is created, as found by the Tribunal in its reasoning on the Sugar decision.

This involves an assessment of what constitutes "functional journalism" for which the criteria are: (i) the collection… of materials for publication, (ii) editorial and (iii) the maintenance and enhancement of standards in journalism, particularly with respect to… balance".

The Information Commissioner acknowledges that the original purpose for creating the work may alter over time because of an "intervening event".

On the facts now available to Sugar, this intervening event may be found to have occurred.

Rupert Casey is a partner at City law firm Macfarlanes

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