Sugar v British Broadcasting Corporation & Anor

Factual and Procedural Background

Company A commissioned an internal report in 2003–2004 analysing the impartiality of its domestic coverage of the Israeli-Palestinian conflict (“the Balen Report”). In January 2005 the Appellant, a solicitor who believed the coverage was biased, requested disclosure of the Report under the Freedom of Information Act 2000 (“the Act”). Company A refused, invoking the statutory wording that the Act applies to it only “in respect of information held for purposes other than those of journalism, art or literature.”

The Appellant complained to the Information Commissioner, who upheld the refusal. Litigation then progressed through multiple stages:

• Information Tribunal (2006) – found the Report disclosable by applying a “dominant purpose” test.
• High Court (2007) – overturned the Tribunal on jurisdiction; later (2009) overturned the Tribunal on the merits, favouring Company A’s “journalistic purpose” argument.
• Court of Appeal (2008 & 2010) – ultimately accepted Company A’s construction that any significant journalistic purpose removes information from the Act.
• House of Lords (2009) – clarified that Company A remains a “public authority” for procedural purposes, remitting the substantive issue.
• Supreme Court (present decision) – dismissed the Appellant’s final appeal and confirmed that the Report is outside the Act.

Legal Issues Presented

1. What is the correct interpretation of the phrase “information held for purposes other than those of journalism, art or literature” in Part VI of Schedule 1 to the Act?
2. When information is held simultaneously for journalistic and non-journalistic purposes, does any significant journalistic purpose remove it from the scope of the Act, or must the court identify the dominant purpose?
3. Does refusal to disclose such information infringe the Appellant’s right to receive information under Article 10 of the European Convention on Human Rights?

Arguments of the Parties

Appellant’s Arguments

• If information is held even partly for non-journalistic purposes, and those purposes are more than minimal, it falls within the Act and must be disclosed.
• The dominant-purpose approach adopted by the Information Tribunal was correct and should be reinstated.
• Article 10 ECHR creates a right to receive the information, and any restriction exceeding the Act’s exemptions is disproportionate.

Company A’s Arguments

• Any information held to a significant extent for journalistic purposes is excluded from the Act, even if also held for other reasons (“polarised construction”).
• Alternatively, only information held predominantly for non-journalistic purposes would be within the Act (“dominant purpose” fallback).
• Disclosure would chill frank internal analysis of editorial standards, undermining freedom of expression protected by Article 10.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court issued multiple concurring opinions. A majority (Judge Phillips, Judge Walker, Judge Brown, and Judge Mance) held that the statutory language protects any information that is held to a significant extent for journalistic purposes, regardless of overlapping non-journalistic purposes. Their key points included:

• The wording in Schedule 1 Part VI is framed positively but functions negatively, carving out a protected “journalistic space” for Company A.
• Interpreting the Act to require disclosure whenever non-journalistic purposes are merely significant would defeat Parliament’s intent to give broadcasters broad protection akin to that provided for legal professional privilege.
• Adopting a “dominant purpose” test would introduce subjectivity, complexity, and unpredictability not mandated by the text.
• Article 10 ECHR does not confer a general right to obtain state-held information; therefore, refusal to disclose the Report does not violate the Convention.
• Even if Article 10 were engaged, non-disclosure is justified as necessary to safeguard the broadcaster’s editorial independence and internal candour.

A minority opinion (Judge Wilson) preferred the dominant-purpose approach but ultimately agreed the appeal should be dismissed because the Report was held predominantly for journalistic purposes.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court confirmed that information held by Company A to any substantial extent for journalistic, artistic, or literary purposes falls outside the Freedom of Information Act 2000. Consequently, the Balen Report need not be disclosed. The decision emphasises robust protection for editorial independence of public service broadcasters and limits the circumstances in which requesters can access their internal documents. No new statutory test was created; rather, the Court affirmed a broad reading of the existing exemption.