Judge overrules Tribunal on Balen
Some of the comment about this has been a little misleading, so it's worthwhile being clear about what the judge, Mr Justice Davis, decided.
The background is that the Freedom of Information Act applies to the BBC only 'in respect of information held for purposes other than those of journalism, art or literature'. This is called the derogation.
The BBC position is that the Balen report is held for purposes of journalism, and so is not covered by FOI. One of those who disagrees and would like to read it is Steven Sugar. He appealed to the Information Commissioner who backed the BBC. Mr Sugar then took the case to the Information Tribunal, which disagreed with the Commissioner and said Mr Sugar was entitled to see the report.
The first part of Mr Justice Davis's ruling is that the Tribunal should not have said this, because it does not have the legal power to overturn the Commissioner where the Commissioner has agreed with the BBC that information requested is held for journalistic purposes and is thus not within the scope of the FOI Act.
Note that this does not affect the Trbunal's ability to overrule the Commissioner on most issues, just on whether information comes under the derogations which apply to the BBC and a few other public bodies. This is because when the Commissioner upholds a derogation, it is not a formal 'decision notice' within the meaning of the FOI Act.
Mr Justice Davis clearly was not entirely happy coming to this conclusion, describing the necessary interpretation of the law as 'inconvenient', but he was persuaded that the BBC's legal submissions that the Tribunal had no jurisdiction to hear such an appeal were 'well-founded'.
So what legal recourse is open to someone like Mr Sugar who objects to what the Commissioner has done in a case like this? The answer is to seek judicial review of the Commissioner's actions (a more ambitious task than appealing a case to the Tribunal).
In the second part of his judgment Mr Justice Davis considered and then rejected Mr Sugar's application for judicial review, finding that the Commissioner's approach when he backed the BBC was lawful and rational.
So the High Court ruling concerns legal processes rather than a detailed assessment of the contents of the report.
In fact, Mr Justice Davis says in his judgment that, although the BBC offered it to him, he himself did not actually read the Balen Report. Nobody asked him to read it, and he clearly didn't think it was necessary in order to decide on the matters before him.