BBC wins High Court FoI case on Balen Report

On Friday, the BBC learned that it has been successful - at least for the meantime - in its attempt to refuse publication of an internal report into its coverage of the Middle East (1,2). Quite apart from the specific issues under examination, the case was a milestone as it was the first time that the provisions of the Freedom of Information Act have been considered under appeal to the High Court.

Before Easter, Mr Justice Davis had indicated (without at that point publishing reasons) that the BBC would be successful on the first of two issues in the case (on this, and the general background, see earlier post). This was the question as to whether the Information Tribunal has competence to reassess the view of the Information Commissioner on whether information held by public service broadcasters was retained for the purposes of 'journalism, art or literature'. Where information is so held it is not subject to disclosure under the FoIAct, as the PSB would not be considered to be a public authority in that context. The judge's ruling results in the curious position that the BBC could appeal a finding by the information Commissioner that material was not held for journalistic purposes, but that others cannot appeal the contrary finding. While an application for judicial review of the Commissioner's decision could still be made, this is inevitably a more costly and burdensome route.

The second issue before the judge comprised an application for judicial review. Mr Justice Davis granted permission for review, but then proceeded to find against Steven Sugar - the solicitor who has brought the case for disclosure (see paras 48 et seq).

While he has been refused leave to appeal the matter further, Mr Sugar has written to Sir Michael Lyons of the BBC Trust to encourage publication notwithstanding the court ruling. He is also hopeful that either the Information Commissioner or the Department for Constitutional Affairs will bring the case to the Court of Appeal on behalf of the public interest.

The transcript of the judgment is available on Casetrack and BAILII: British Broadcasting Corporation (R on the application of) v The Information Tribunal [2007] EWHC 905 (Admin)