Montford v Information Commissioner and BBC

The Appellant had sought disclosure of information from the BBC under the Freedom of Information Act 2000 (“FOIA”). The information he had requested concerned the organisation of seminars known as the Cambridge Media and Environment Programme which had been run by the BBC and an academic.

The CMEP was a series of seminars designed for BBC journalists to discuss global issues with external experts, and to explore how these issues were covered by the media. The seminars aimed to improve BBC journalism on slow moving issues such as environmental change and world development.

The BBC declined to disclose the requested information under FOIA on the basis that it was information held for the purposes of journalism, art or literature, and therefore fell outside the scope of the BBC’s designation under FOIA. The Information Commissioner upheld the BBC’s response in his Decision Notice.

The Appellant appealed to the First Tier Tribunal arguing that the CMEP seminars were not bona fide attempts at “self-critical analysis” and therefore were not held for the purposes of journalism. The Appellant also argued that the information sought was three stages removed from programme output on the basis that the seminars informed decision-makers who then decided editorial policy which then informed programme output. Alternatively the Appellant argued that the information was environmental information and fell to be disclosed under the Environmental Information Regulations 2004 (the “EIR”).

The BBC is not required to disclose information under FOIA unless it holds information for “purposes other than those of journalism, art or literature” – this is known as the BBC’s “designation”. However, a finding that information is not held by the BBC for the purposes of journalism, art or literature does not mean that disclosure of the information will necessary follow, as the BBC may consider whether any exemption set out in Part II of FOIA applies.

The scope of the BBC’s designation had been subject to significant consideration in the courts, most recently by the Supreme Court in Sugar (deceased)(represented by Fiona Paveley) v BBC and anr [2012] UKSC 4. The Tribunal stated at [46] that the key elements of the Supreme Court’s decision were:

the purpose of the BBC’s designation is to prevent interference with its broadcasting functions. To give effect to Parliament’s intention to avoid such interference, a purposive construction of FOIA is required in respect of the designation;
• the scope of the BBC’s designation extends to all information held for purposes other than journalism, art or literature, which covered the entirety of the BBC’s output to the public;
• the focus of the designation is the purpose for which the information is held; and
• if the BBC holds information to any significant degree (i.e. something more than minimal) for the purposes of journalism, art or literature, then even if that is not the predominant purposes of holding the information, the information is exempt from production under FOIA.

The Tribunal found that the information sought by the Appellant was held directly for journalistic purposes, including the training of BBC journalists, and therefore fell “squarely” outside the scope of the BBC’s designation and did not require disclosure under FOIA.

The Tribunal also ruled that the BBC did not fall within the definition of a public authority set out in EIR regulation 2(2). EIR regulation 2(2) defined a public authority as:
(a) government departments;
(b) any other public authority as defined in section 3(1) of FOIA, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 of the Act but excluding any body which was listed in Schedule 1 of FOIA only in relation to information of the specified description;
(c) any other body that carried out functions of public administration; or
(d) any other body that is under the control of a person falling within the definitions (a),(b), and (c) above and which:

(i) has public responsibilities relating to the environment;
(ii) exercises functions of a public nature relating to the environment; or
(iii) provides public services relating to the environment.

The BBC was plainly not a governmental department. It was also only listed in Schedule 1 of FOIA in relation to information other than that held for the purposes of journalism, art or literature. The BBC was therefore excluded from the definition of a public authority by virtue of EIR regulation 2(2)(b) irrespective of whether the information actually fell within the scope of the BBC’s designation.

The Tribunal ruled that to fall within the scope of EIR regulation 2(2)(c), it was not sufficient that the body carried out functions of a public nature. Those functions must be expressly administrative functions. Those functions would necessarily include specific duties, activities or services in relation to the environment – Smartsource v Information Commissioner and others [2011] 1 Info LR 1498 and Bruton v Information Commissioner and the Duchy of Cornwall and anr (EA/2010/0182) applied.

The Tribunal found that the BBC did not perform public administrative functions and therefore did not fall within the scope of the EIR regulation 2(2)(c). It did not perform any functions which could typically be described as “governmental” in nature – its public service “mission” was to “inform, educate and entertain”. The fact that these were matters in which the state had an interest did not mean that those who provide the service were providing a public function.

In relation to EIR regulation 2(2)(d), that section required a decisive level of control which was not present in this case – Smartsource v Information Commissioner and others [2011] 1 Info LR 1498 applied. The level of control necessary to bring the BBC within the scope of this section was contradicted by the BBC’s independence from government control. Accordingly, the BBC was not a public authority within the scope of the EIR.

The Tribunal also found that in any event, the information sought by the Appellant was not environmental information within the statutory definition. There needed to be a sufficiently close connection between the information and the probable impact on the environment before it could be said that the information was “environmental information”. A remote connection with safeguarding the environment would not suffice. In this case, the fact that the BBC’s journalism training involved information concerning the environment was not sufficient to bring it within the statutory definition of “environmental information”. There was no direct link between the information sought and the environment.

The Appeal was dismissed. The information was held by the BBC for the purposes of journalism and fell outside the scope of the BBC’s designation in FOIA.

The information sought by the Appellant was therefore not disclosable under the Act. The Appellant’s reliance on the EIR did not assist his appeal.

The BBC was not a public authority within the scope of the EIR and the information sought was not “environmental information” within the statutory definition.

This decision is one of the first reasoned decisions from the First Tier Tribunal following the Supreme Court’s examination of the scope of the BBC’s designation under FOIA in Sugar. However, the Tribunal’s decision is perhaps more interesting for its careful analysis of the application of the EIR and in particular its emphasis on the need for there to be a sufficiently close connection between the information sought and the impact upon the environment before information falls within the scope of the EIR.