Professor Barnie Choudhury v Information Commissioner & Anor

Neutral citation number: [2026] UKFTT 00731 (GRC) First-tier Tribunal General Regulatory Chamber Information Rights Case Reference: FT/EA/2026/0018 Decided without a hearing Decision given on: 21 May 2026 Before JUDGE HAZEL OLIVER MEMBER MARION SAUNDERS MEMBER DAVE SIVERS Between PROFESSOR BARNIE CHOUDHURY and (1) INFORMATION COMMISSIONER (2) BRITISH BROADCASTING CORPORATION Appellant Respondents Decision: The appeal is Dismissed Background to Appeal REASONS 1. This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 17 December 2025 (IC-432164-D8L6, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about the costs related to the “Make a Difference Awards” requested from the British Broadcasting Corporation (the “BBC”). 2. The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended). On 8 September 2025, the Appellant wrote to the Second Respondent (the “BBC”) and made 3. a request for information under FOIA (the “Request”), the relevant extract of which is as follows: © CROWN COPYRIGHT 2026 “My name if Barnie Choudhury, and I’m a freelance journalist. I am writing to request information under the Freedom of Information Act 2000 regarding the BBC’s “Make A Difference Awards” initiative, which has been running since 2020 and involves local awards ceremonies across the UK. Specifically, I am seeking a breakdown of the costs incurred by the BBC to host these awards events, disaggregated as follows: 1. By local BBC radio station. Please provide the total cost of hosting each awards event, attributed to the relevant local BBC radio station or regional BBC entity responsible for delivery. 2. By year. Please provide the above breakdown for each year the awards have been held, from 2020 through to the most recent completed awards cycle (presumably 2025). Anticipated exemptions and clarifications To assist with processing and to avoid unnecessary refusals, I offer the following clarifications: …… • Schedule 1, part VI (journalism, art or literature): This request concerns financial records relating to event hosting and delivery, not editorial content or journalistic output. Accordingly, the information sought is held for purposes other than journalism, art or literature, and falls within the scope of the FOIA. This request is made in the public interest, given the BBC’s role as a publicly funded broadcaster and the importance of transparency in its local engagement initiatives. …… I remind you that under section 16 of the FOIA, a public body must reasonably help the enquirer receive the information requested. On 16 September 2025, the BBC responded to the Request. In its response, the BBC stated 4. that the information was held for the purposes of “journalism, art or literature” and therefore fell outside FOIA. The Appellant complained to the Commissioner on 16 September 2025. 5. Commissioner’s Decision Notice: The a. Set out the extent to which the FOIA applies to the BBC, per Schedule One, Part VI FOIA. The Commissioner explained that the “derogation” under that Part means that “information that the BBC holds for the purpose of journalism, art or literature – in broad terms, its output or related to its output – is not covered by FOIA”. b. Provided a description of the BBC information which is and is not covered by the FOIA under that derogation. c. Referred to and adopted the approach of the Supreme Court in relation to the derogation in Sugar (Deceased) v British Broadcasting Corporation and another [2012] UKSC 4. d. Summarised the Appellant’s complaint, namely that “The BBC declined my FOIA request on the grounds that the information is held “for the purposes of journalism, art or literature” and therefore falls outside of the scope of the Act under Schedule 1, Part VI. I submit that this refusal is legally flawed, procedurally inadequate, and contrary to the public interest. The BBC has failed to apply the correct legal test, misinterpreted Sugar V BBC [2012] UKSC 4, and ignored its duty under section 16 of the FOIA to assist the requester.” e. Stated that it was satisfied that information about the breakdown of costs related to the BBC’s “Make a Difference Awards” initiative, if held at all, is derogated information because “This type of information would be associated with the BBC’s output because the requested information is associated with decisions how the BBC allocates its resources.”. f. Determined for those reasons that the BBC was not obliged to comply with the complainant’s information requests. The Appeal and Responses The Appellant appealed on 12 January 2026. 6. His main ground of appeal is that the Commissioner failed to apply the correct legal tests when determining whether the requested information was held for the purposes of “journalism, art or literature”: a. b. c. d. e. f. g. The Commissioner failed to apply the dominant purpose test – the dominant purpose is financial management, budgeting, and operational delivery of community events, not journalism. The Commissioner misapplied Sugar v BBC, specifically paragraph 70 of Lord Walker’s judgment. The Commissioner failed to test whether the information is journalistic at all, and did not require the BBC to provide examples. The Commissioner ignored the BBC’s own evidence that “Make A Difference” is a community outreach initiative, not journalism. The Commissioner failed to distinguish between “resource allocation for journalism” and “operational spending unrelated to journalism” – this is a fundamental misunderstanding that would mean all BBC spending is automatically journalistic. The Commissioner failed to apply FOIA Schedule 1, Part VI correctly. The Commissioner failed to consider the BBC’s section 16 duty. 7. The Commissioner’s response maintains that the Decision Notice was correct: a. The majority in Sugar (No 2) held that information does not need to be held for the predominant purpose of journalism to fall within the derogation – meaning where information was held to any extent for journalism it was outside the scope of FOIA. b. c. d. There is a sufficiently direct link between the purposes for which the information is held and the production of the BBC’s output to the public, and/or the journalistic or creative activities that underpin such production. The costs information sought was relatively recent and there is no suggestion that they were kept purely for archival purposes, in case they may be useful in the future, as opposed to a current purpose. Criticism of the manner in which the Commissioner conducted his investigation is not a valid ground of appeal. Section 16 FOIA is contained in Part I FOIA and given the Commissioner’s conclusion that the derogation applied, he made no finding on section 16 FOIA. 8. The BBC was joined as a party to the proceedings and opposes the appeal as follows: a. b. c. The Commissioner did not err in concluding that the derogation applied. The Commissioner was correct to conclude it is held for the purposes of journalism. The award ceremonies form part of the BBC’s editorial output. The costs associated with the ceremonies are directly connected with journalistic activity in two ways – as an intrinsic part of the production process, and as part of the annual review process for the initiative. The Commissioner did not fail to apply the correct legal test – the Supreme Court rejected the dominant purpose test, finding that if the information is held for journalistic purposes (even if that is not the dominant or only purpose) then it is exempt from disclosure. The section 16 duty did not apply because the BBC falls outside the statutory definition of a public authority for the purposes of FOIA, meaning it has no FOIA duties. The Appellant submitted replies to the Commissioner and BBC responses which we have 9. considered and address in the discussion below. Applicable law 10. The right to obtain information under FOIA applies to public authorities (section 1(1)). A “public authority” is defined in section 3(1) as any body that is listed in Schedule 1 FOIA. This is subject to section 7, which says “Where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts I to V of this Act applies to any other information held by the authority.” 11. The BBC is listed as a public authority in Part VI of Schedule 1 of FOIA, but only in respect of certain information – “The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature.” This means that the BBC is not subject to FOIA in respect of information that is held for the purposes of journalism, art or literature. 12. The meaning of “purposes other than those of journalism, art or literature” was considered by the Supreme Court in Sugar (Deceased) v BBC [2012] UKSC 4 (“Sugar 2”). This decision looks in detail at what this means for information that is held partly for purposes of journalism and partly for other purposes: a. The purpose of this provision is to ensure that “public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work in progress” (Lord Walker, paragraph 78). The protection is “designed to prevent interference with the performance of the functions of the BBC in broadcasting journalism, art and literature.” (Lord Phillips, paragraph 64). Put simply, this is to prevent public service broadcasters from being placed at a disadvantage in relation to their commercial rivals (Lord Wilson, paragraph 37). b. The composite expression “journalism, art or literature” seems to be intended to cover the whole of the BBC’s output in its mission to inform, educate and entertain the public - “On that comprehensive approach the purposes of journalism, art or literature would be, quite simply, the purposes of the BBC’s entire output to the public.” (Lord Walker, paragraph 70). c. If information is held for the purposes of journalism, it is exempt from disclosure under FOIA, even if that information is also held for other purposes as well. The provision will have failed to achieve its purpose if the co-existence of other non-journalistic purposes meant that FOIA applied (Lord Walker, paragraph 78). There are two categories of information – “one is information held for purposes that are in no way those of journalism, and the other is information held for the purposes of journalism, even if it is also held for (possibly more important) purposes.” (Lord Walker, paragraph 75). Similarly, Lord Brown said “In the event that information is held to any significant degree (and we are all agreed that the de minimis principle would otherwise apply) for the purposes of journalism, then to my mind it would seem artificial and impermissible to construe the Act as applying to that information.” (paragraph 104). d. The Court considered whether this would leave the BBC almost free of FOIA obligations. Lord Walker addressed this as follows – “In my view the correct approach is for the Tribunal, while eschewing the predominance of purpose as a test, to have some regard to the directness of the purpose.” This depends on the proximity between the subject matter of the request and the BBC’s journalistic activities and end product (paragraph 83). Lord Phillips agreed, saying “Information should only be found to be held for the purposes of journalism, art or literature if an immediate object of holding the information is to use it for one of those purposes.” (paragraph 67). The central question is “whether there remains any sufficiently direct link between the BBC’s continuing holding of the information and the achievement of its journalistic purposes.” (Lord Brown, paragraph 106). e. Some examples were given of information that would not fall within the purposes of journalism. For example, the cost of cleaning the BBC boardroom is only remotely linked to the product of the BBC (paragraph 83). Similarly, information about advertising revenue, property ownership or outgoings, or financial debt, would not normally be held for the purposes of journalism. There may be a link, in that the more that is spent on wages, rent or interest payments, the less there is for programmes, but that is not sufficient. Otherwise literally every piece of information held by the BBC could be said to be held for the purposes of journalism. The question should be considered “in a relatively narrow rather than a relatively wide way.” (Lord Walker, paragraph 84, quoting Lord Neuberger MR in the Court of Appeal). f. This is an issue for the Commissioner and Tribunal to decide, and there is no “unequivocal, bright-line test” (Lord Walker, paragraph 84). g. Lord Wilson’s minority opinion was that the test is the “dominant purpose” for which the information is held (paragraph 57). However, the majority of the Court did not agree with this. Issues and evidence 13. The issues have been agreed by the parties: a. Whether information relating to costs associated with the “Make a Difference Awards” initiative are held for the purposes of journalism, art or literature. b. Whether the BBC is required to provide advice under section 16 of the FOIA in the circumstances of this case. 14. By way of evidence and submissions we had the following, all of which we have taken into account in making our decision: a. b. An agreed bundle of open documents. A witness statement from Chris Burns, BBC Controller of Local Audio Commissioning. Open Evidence 15. We had a witness statement from Chris Burns, whose responsibilities include leading the “Make A Difference Awards” initiative alongside colleagues in local radio and in Nations. Key facts from his evidence are: a. b. c. d. e. The “Make a Difference” initiative launched in March 2020 during the Covid pandemic. It became a key BBC local brand after lockdown and the awards were launched, placing stories about unsung heroes under a single banner. It was adopted by Nations Radio last year. It is now a BBC brand involving local and Nations radio, the One Show and Morning Live. The annual awards are launched via the One Show on BBC1 and then advertised on local radio. Shortlisted stories for each region are broadcast across local radio stations from August until the awards ceremonies in September, and are also included in other content throughout the year. All finalists are invited to a physical awards ceremony which is recorded. The audio and video are edited and used for a wide variety of broadcast and social media content, such as clips on local breakfast shows. The station also maintains the relationship with winners and nominees, and they will feature in other BBC output. The awards are one of the ways the BBC highlights its audiences doing social good. The nomination stories and ceremonies provide the BBC with a variety of inspirational content from all over the UK to serve local audiences, and are featured across platforms. The costs to facilitate the initiative include those associated with hosting and recording the awards events. Each local station is allocated an additional sum from an editorial budget to run the awards, including the event itself. Costs associated with hosting the events, including venue and providing food and drink, are considered production costs related to output – as the purpose is to create a relaxed environment and enhance the community feel so people feel comfortable about sharing their story. The production will be creating material at the events which is featured in future output. Discussion and Conclusions In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s 14. Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues. 15. Whether information relating to costs associated with the “Make a Difference Awards” initiative are held for the purposes of journalism, art or literature. This is the key issue in the appeal, and turns on the witness evidence from the BBC and the legal guidance from the Supreme Court in Sugar 2. 16. The witness statement from Chris Burns makes it clear that the Make a Difference Awards are used to create output for the BBC. The events are recorded, and edited audio and video is used in a variety of broadcast content, including local breakfast shows, and in social media. The build-up to the awards also features on local and national radio, and national television. The Make a Difference Awards as a whole clearly form part of the BBC’s output, and this includes the awards ceremonies themselves. 17. The purposes of journalism, art and literature encompass the BBC’s entire output to the public (Lord Walker in Sugar 2). The Make a Difference Awards ceremonies are recorded and used in various different BBC broadcasts and social media posts, and so we find that they clearly have a purpose of journalism. 18. The Appellant has asked for a breakdown of the costs to hold these events. The issue is whether this specific information is sufficiently connected with the purposes of journalism to fall outside FOIA. Mr Burns’ witness statement explains that costs of hosting, such as venue and food/drink, are considered production costs related to output. This is because they are part of creating the right environment for people to share their story. These stories are recorded and used in future output. 19. The test from Sugar 2 is whether this information on costs is held by the BBC for the purposes of journalism at all. If so, it falls outside FOIA. We find that the information is clearly held for the purposes of journalism. The costs of holding the Make a Difference awards events are intrinsically linked with the production of an event which produces output content for the BBC. Applying the guidance from Sugar 2, there is a sufficiently direct link between the holding of the information and the output from the event to mean the information is held for this purpose, even if it is held for other purposes as well. The requested information is quite recent, and is used during production and for planning future productions. This is very different from the examples given in paragraph 12(e) above, where financial information has only a remote link to the product of the BBC. Looking at the purpose of the provision, it would potentially damage the BBC if commercial competitors who wanted to produce similar content had full access to the costs of production. 20. We have considered the specific arguments made by the Appellant in his appeal and additional comments in his replies: a. The Commissioner failed to apply the dominant purpose test – the dominant purpose is financial management, budgeting, and operational delivery of community events, not journalism. The dominant purpose is not the correct test. This was the minority opinion of Lord Wilson in Sugar 2. The majority view was that information is exempt from FOIA if it is held for the purposes of journalism at all, even if it is also held for other purposes. b. The Commissioner misapplied Sugar v BBC, specifically paragraph 70 of Lord Walker’s judgment. The Appellant says that this has been misinterpreted as covering everything that the BBC does, and journalism is about content, not operations. We do not agree. We have applied the tests in Sugar 2 to the facts, and find that the costs do have a sufficiently direct link with journalism in this case to fall outside FOIA. There may or may not be other situations where information held by the BBC on matters such as event budgets, venue hire, catering, staffing and community engagements initiatives have only a remote link to the product of the BBC. But the link in this case is clear and direct. The Appellant argues that there is a distinction between editorial and operational information. We do not agree that this is the correct test. As explained above, the purpose of the limits on FOIA’s application to the BBC is to protect its information from commercial competitors. Costs associated with running events that are subsequently broadcast are a clear example of the type of information that could damage the BBC if it were made publicly available. This specific information on costs is different from the more general financial information that is published by the BBC, because it is about a specific type of event and associated broadcasts, and so could be used by rival commercial broadcasters to obtain a competitive advantage. c. The Commissioner failed to test whether the information is journalistic at all, and did not require the BBC to provide examples. The Tribunal has considered this matter afresh and we have reached our own decision having considered the witness evidence from the BBC. d. The Commissioner ignored the BBC’s own evidence that “Make A Difference” is a community outreach initiative, not journalism. We note what the Appellant says in his appeal. However, the fact that the event and associated costs are partly for purposes such as community engagement and outreach does not prevent the information from being held for the purposes of journalism as well. e. The Commissioner failed to distinguish between “resource allocation for journalism” and “operational spending unrelated to journalism” – this is a fundamental misunderstanding that would mean all BBC spending is automatically journalistic. We have considered the issue afresh in our decision. We do not find that all BBC spending is automatically journalistic. However, in this case the spending is at least in part for the purposes of journalism, because of the way the events are used to produce broadcast and social media content. This is not simply the BBC broadcasting about the awards, it is the BBC broadcasting the content of the events themselves. f. The Commissioner failed to apply FOIA Schedule 1, Part VI correctly. The Appellant argues that the information is financial and operational, rather than editorial, journalistic or creative. We disagree, for the reasons already explained. 21. We therefore find that information relating to costs associated with the “Make a Difference Awards” initiative is held for the purposes of journalism, art or literature. This means that this information as held by the BBC is not covered by FOIA. 22. Whether the BBC is required to provide advice under section 16 of the FOIA in the circumstances of this case. The Appellant says that the BBC was required to provide advice and assistance under section 16 FOIA. We do not agree. The legislation is clear on this point. As set out in section 7 FOIA, Parts I to V of FOIA do not apply if the information held by the BBC falls outside Schedule 1. The requested information is not covered by Schedule 1. The duty in section 16 is contained in Part I of FOIA. The duty does not apply because Part I of FOIA does not apply at all to the requested information. 23. We dismiss the appeal for the reasons explained above. Signed: Judge Oliver Date: 13 May 2026 9