Balen Report - Freedom of Information Court Case

Freedom of Information Court Case

A number of people requested copies of the report under the Freedom of Information Act 2000. The BBC rejected these requests on the grounds that the report fell under a derogation in the FOI Act: "Information held by the BBC is subject to the Freedom of Information Act only if it is 'held for purposes other than those of journalism, art or literature'." The BBC contended that as an internal report aimed at checking its own standards of journalism, the report was held for purposes of journalism. The BBC's position was challenged by Jewish activist, and consultant commercial solicitor at London firm Forsters,Steven Sugar, who appealed initially to the Information Commissioner (who ruled in favour of the BBC) and then to the Information Tribunal (who ruled that the report was not held for purposes of journalism).

The BBC appealed against the decision of the Information Tribunal to the High Court on two grounds: that the Information Tribunal did not have jurisdiction to hear an appeal from the Information Commissioner in this case and that even if did its decision was flawed as a matter of law. The High Court decided that the Tribunal did lack jurisdiction and rejected Mr Sugar's challenge to the Commissioner's decision. The High Court did not consider the BBC's second ground of appeal. Mr Sugar's appeal to the Court of Appeal against the High Court's decision on the jurisdiction question was dismissed but his subsequent appeal to the House of Lords (then the highest court in the UK) was allowed by 3 votes to 2 on 11 February 2009. Thus the Tribunal's decision in Mr Sugar's favour was reinstated. The BBC retained its second ground of appeal and the case returned to the High Court on 2 October 2009, when Mr Justice Irwin ruled in the BBC's favour. His decision was that the information requested was held 'significantly' for the purposes of journalism and therefore was exempt under the Freedom of Information Act. On 23 June 2010, at the Court of Appeal the Master of the Rolls, Lord Neuberger, Lord Justice Moses and Lord Justice Munby upheld that decision and rejected Mr Sugar's appeal.

After Mr Sugar's death, an appeal by his widow was heard at the Supreme Court on 23 November 2011. On 15th February 2012 the Supreme Court unanimously dismissed the appeal, on the basis that, even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of FOIA. Lord Wilson would have dismissed it on the basis that, if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes