Michael Keenan v The Information Commissioner

Background to Appeals

1. These appeals are against two decisions of the Information Commissioner (“the Commissioner”, dated 6 th June 2024 (IC-295829-D2M9 and IC-287763-Z0D0, “Decision Notice 1”, appeal reference FT/EA/2024/0253) and 16 th May 2024 (IC-300588-Q8B6, “Decision Notice 2”, appeal reference FT/EA/2024/0255).

2. The appeals relate to the application of the Freedom of Information Act 2000 (“FOIA”). They concern information requested from The British Broadcasting Corporation (“the BBC”) about the remuneration levels of staff, presenters, cast members and performers on the Strictly Come Dancing and Casualty shows. The appeals have been joined to be heard together.

3. Decision Notice 1 concerns two requests for information, made on 8 th December 2023 (IC-295829-D2M9) and 11 th January 2024 (IC-287763-Z0D0) respectively. Decision Notice 2 relates to a single request for information, made on 30 th March 2024. Requests 1 and 2 (IC-295829-D2M9 and IC-2877630-Z0D0) Request 1

4. On 8 th December 2023, the Appellant wrote to the BBC and requested the following information (“Request 1”): “In accordance with the FOI Act can you please provide me with a breakdown of the individual names & the contract values paid to all parties including BBC staff, presenters, of the 2023 Strictly Come Dancing Programme which should also include the individuals below etc. • Amanda Abbington and Giovanni Pernice • Zara McDermott and Graziano Di Prima • Jody Cundy CBE and Jowita Przystal • Krishnan Gur-Murthy and Lauren Oakley • Angela Rippon CBE and Kai Widdrington • Layton Williams and Nikita Kuzmin • Nigel Harman and Katya Jones • Bobby Brazier and Dianne Buswell • Eddie Kadi and Karen Hauer • Annabel Croft and Johannes Radebe • Ellie Leach and Vito Coppola • Adam Thomas and Luba Mushtuk • Angela Scanlon and Carlos Gu • Nikita Kanda and Gorka Marquez • Les Dennis and Nancy Xu”

5. The BBC responded on 10 th January 2024, explaining that, “If held, the information you have requested is held for the purposes of ‘art, journalism or literature’”, and that “…the BBC is not obliged to disclose this type of information and we will therefore not be disclosing any information requested by you on this occasion.” . The BBC went on to explain that “Information that relates to the BBC’s output, or information that supports and is closely associated with these creative activities, is considered to be held by the BBC for the purposes of art, journalism or literature. Such information held by the BBC and other public service broadcasters falls outside the scope of the FOI Act.” . The response additionally explained that the BBC does not offer an internal review in circumstances where the information requested is not covered by FOIA. Request 2

6. The Appellant wrote back to the BBC and made a second request for information on 11 th January 2024. The request was for the following information: “In accordance with the FOI Act can you please provide the total salary & contract costs to the TV licence payer for the 2023/2024 Strictly Come Dancing series?”

7. The BBC provided its response on 7 th February 2024, again explaining that, if held, the information being requested was held for the purposes of ‘art, journalism or literature’. The BBC provided the same rationale for refusing to disclose the information, as with the previous request, namely that the FOIA does not require the BBC to disclose this type of information. The response included a statement that the BBC does not offer an internal review when the information requested is not covered by FOIA.

8. On 8 th February 2024, the Appellant requested a review of the BBC’s decision in an email. The BBC responded later that day to explain that an internal review would not be offered when the information requested is not covered by FOIA.

9. The Appellant complained to the Commissioner about the way both of his requests had been dealt with by the BBC on 10 th February 2024. The Commissioner decided that, in both cases, if held, the BBC holds the information for the purposes of ‘journalism, art or literature’, and that the BBC is not required to take any corrective steps, as the information is not covered by FOIA. Request 3 (IC-300588-Q8B6)

10. On 30 th March 2024, the complainant wrote once more to the BBC and requested the following information: “As you have an appalling history of wasting TV Licence Fee Payers money on extremely expensive Casualty cast members salaries such as the cast member who played Charlie Fairhead can you please provide me with the salaries of all Casualty Cast Members in accordance with the FOI Act as this is a BBC entertainment soap which isn’t exempt from the FOI Act.”

11. The BBC responded on 11 th April 2024, again explaining that it was not required to disclose this type of information as, if held, it is held for the purposes of ‘art, journalism or literature’. As with the previous responses, the BBC stated that an internal review would not be offered in these circumstances. A request for an internal review was not made by the Appellant in this instance.

12. The Appellant made a complaint to the Commissioner about the response to his request on 13 th April 2024, stating that the BBC “unlawfully continue to use the [art, journalism or literature] false exemption to unlawfully fail to disclose the requested information which is in the public interest regarding how the public’s BBC Licence Fee is being spent by the BBC contrary to the Freedom of Information Act.” .

13. As with the previous requests, the Commissioner decided that the information being requested, if held, was held for the purposes of journalism, art or literature, and was therefore not covered by FOIA. The BBC was consequently not required to provide the requested information. The Appeals and Responses First appeal (FT/EA/2024/0253) against Decision Notice 1 (IC-295829-D2M9 and IC-287763-Z0D0)

14. The Appellant submitted the first of these two appeals, relating to the Strictly Come Dancing programme, to the Tribunal on 1 st July 2024. His grounds of appeal in relation to Decision Notice 1 are stated as being as follows: (i) That the information requested regarding the BBC’s Strictly Come Dancing staffing costs does not fall under the FOIA exemption categories of ‘journalism, art or literature’ as it is an entertainment show. (ii) That the BBC is obliged to disclose BBC salaries of above £150,000 as confirmed within their attached 2022/2023 Annual Accounts at page 97.

15. In his Response to the Appeal, dated 6 th August 2024, the Commissioner maintained that the requested information falls outside the scope of FOIA, as there is a sufficiently direct link between the purposes for which the information is held and the BBC’s output, and that it cannot therefore be disclosed under the Act . Second appeal (FT/EA/2024/0255) against Decision Notice 2 (IC-300588-Q8B6)

16. The second of the Appellant’s appeals, relating to the information concerning the Casualty Programme, was also submitted on the same date as the first appeal. His grounds of appeal echoed those of the first appeal, save that this related to a different BBC programme, and were as follows: (i) That the information requested regarding the BBC’s Casualty staffing costs does not fall under the FOI exemption categories of ‘journalism, art or literature’ as it is an entertainment show. (ii) That the BBC is obliged to disclose BBC Salaries of above £150,000 as confirmed within their attached 202/23 Annual Accounts at page 97.

17. As with the response to the first appeal, the Commissioner’s Response, dated 14 th October 2024, maintained that the requested information falls outside the scope of FOIA and is not disclosable on the same basis. Legal Framework

18. FOIA provides a scheme for the disclosure of information held by public authorities. Section 1(1) and (2) provide as follows: “1. – General right of access to information held by public authorities (1) Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds the information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. (2) Subsection (1) has the effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”

19. Section 3(1) defines ‘public authorities for the purposes of FOIA as follows: “3. – Public authorities (1) In this Act ‘public authority’ means – (a) Subject to section 4(4), any body which, any other person who, or the holder of any office which – (i) is listed in Schedule 1, or (ii) is designated by order under section 5, or (b) a publicly-owned company as defined by section 6.”

20. Section 7(1) FOIA makes provision for FOIA having limited application to certain listed public authorities: “7. – Public authorities to which Act has limited application (1) 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.”

21. Part VI of Schedule 1 of FOIA includes the BBC in the list of public authorities to which it applies. The listing is as follows: “The British Broadcasting Corporation in respect of information held for purposes other than those of journalism, art or literature.”

22. When read together, section 7(1) and Part VI of Schedule 1 FOIA have the effect that information held by the BBC falls outside the scope of FOIA, and as a result is not disclosable, if it is held for the purposes of ‘journalism, art or literature’ (“the derogation”). Where the requested information falls within the scope of that derogation, the BBC is not treated as a public authority for the purposes of FOIA, and the BBC is therefore not under any obligation to disclose that information.

23. The scope of the BBC’s obligations under FOIA was considered at length by the Supreme Court in Sugar (Deceased) v British Broadcasting Corporation [2012] UKSC 4 , which remains the leading authority on the interpretation and application of the derogation. In summary, the majority’s findings in Sugar were that: (i) “The composite expression “journalism, art or literature” seems “to be intended to cover the whole of the BBC’s output…the purposes of journalism, art or literature would be, quite simply, the purposes of the BBC’s entire output to the public.” – para 70 per Lord Walker). (ii) There is a powerful public interest against public service broadcasters being bound to FOIA in the same manner as other public authorities: “…public service broadcasters, no less than 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. They should also be free of inhibition in monitoring and reviewing their output in order to maintain standards and rectify lapses.” (para 78 per Lord Walker) “The special consideration to which the legislator gave effect was the freedom of the BBC as a public service broadcaster in relation to its journalistic, artistic and literary output. Information held for any such purposes of journalism, art or literature was absolutely exempt from disclosure. The legislator was not content with the more qualified protection from disclosure, often depending on a balancing exercise or evaluation, which would anyway have been available under section 2, read with sections 28, 29, 36, 41 and 43.” (para 111 per Lord Mance) “The protection is designed to prevent interference with the performance of the functions of the BBC in broadcasting journalism, art and literature. That is why it focuses on the purpose for which the information is held.” (para 64 per Lord Phillips) (iii) The proper construction of this derogation is that information “information held for the purposes of journalism, even if it is also held for other (possibly more important) purposes” falls outside the scope of FOIA. Only information “held for purposes that are in no way those of journalism” falls within FOIA (para 75 per Lord Walker). The “real emphasis [of the derogation] is on what is not disclosable – that is material held for the purposes of the BBC’s output.” (para 79 per Lord Walker).

24. Though Lord Wilson was in the minority in Sugar in relation to his approach to the overall test to be applied when deciding whether the derogation should apply, his suggestion that the “key” to the meaning of ‘journalism, art or literature’ lied in the omnibus word “output” was followed by the majority (para 38 per Lord Wilson). When considering the term ‘journalism’ in isolation, however, as Sugar concerned an internal briefing document produced by the BBC which clearly related to journalism, rather than art or literature, he approved the Tribunal’s analysis: “…the Tribunal identified three types of activity: first, the collecting, writing and verifying of material for publication; second, the editing of the material, including its selection and arrangement, the provision of context for it and the determination of when and how it should be broadcast; and third, the maintenance, enhancement of the standards of the output by reviews of its quality, in terms in particular of accuracy, balance and completeness, and the supervision and training of journalists. In relation to this third type, the Tribunal added, at para 116: “Self-critical review and analysis of output is a necessary part of safeguarding and enhancing quality. The necessary frankness of such internal analysis would be damaged if it were to be written in an anodyne fashion, as would be likely to be the case if it were potentially disclosable to a rival broadcaster.” The Tribunal contrasted the three suggested types of journalistic activity with the direction of policy, strategy and resources which provide the framework within which a public service broadcaster conducts its operations.” (para 39 per Lord Wilson)

25. Lord Walker (at para 83 of Sugar ) set out that the correct test to be applied is for the Tribunal “to have some regard to the directness of the purpose. That is not a distinction without a difference. It is not weighing one purpose against another, but considering the proximity between the subject-matter of the request and the BBC’s journalistic activities and end-product.” . He went on to give examples of information which would fall within the scope of FOIA (paras 83 and 84) and would not be said to be “held for purposes…of journalism” . These were as follows: (i) The cost of cleaning the BBC Boardroom. (ii) Information about advertising revenue, property ownership or outgoings, financial debt.

26. In providing his rationale, Lord Walker explained as follows: “In my view, whatever the meaning is given to ‘journalism’ I would not be sympathetic to the notion that information about, for instance, advertising revenue, property ownership or outgoing, financial debt, and the like would normally be ‘held for purposes…of journalism’. No doubt there can be said to be a link between such information and journalism: the more that is spent on wages, rent or interest payments, the less there is for programmes. However, on that basis, literally every piece of information held by the BBC could be said to be held for purposes of journalism. In my view, save on particular facts, such information, although it may well affect journalism-related issues and decisions, would not normally be ‘held for purposes…or journalism’. The question whether information is held for purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way.”

27. The ‘remoteness’ criterion was considered by Lord Phillips, Lord Brown, and Lord Mance in the context of material held for historical or archival purposes. Lord Phillips, President of the Supreme Court, put the general point slightly differently, but to the same effect (at para 67): “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. If that test is satisfied the information will fall outside the definition, even if that is the predominant purpose. If it is not, the information will fall within the definition and be subject to disclosure in accordance with the provisions of Parts I to V of the Act .”

28. Lord Brown (at para 106) agreed with Lord Walker’s formulation of the test and commented as follows: “…the central question to be asked in such a context will be, not which purpose is predominant, but rather whether there remains any sufficiently direct link between the BBC’s continuing holding of the information and the achievement of its journalistic purposes.”

29. Lord Mance (at para 112) considered that such material would fall outside the scope of FOIA if the material was “not envisaged as having any current purpose, but stored for historical purposes or against the possibility of some unforeseen need to revisit, or produce evidence of, past events. A library maintained for current reference would in contrast contain material held for the purposes of journalism, art or literature.” . The role of the Tribunal

30. The Tribunal has the following powers when determining appeals against the Commissioner’s decisions for the purposes of FOIA: Section 57 FOIA: Appeal against notices… (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. Section 58 FOIA: Determination of appeals (1) If on an appeal under section 57 the Tribunal considers– (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised the discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based. Issues and Evidence

31. The question for this Tribunal is whether the requested information, which forms the subject matter for each appeal, is held by the BBC for purposes other than those of ‘journalism, art or literature’ (as per section 7(1) and Part VI of Schedule 1 FOIA), and if so, whether the provisions of FOIA apply to the information concerned.

32. We had been provided with the following documents in advance of the oral hearing: i) A combined open bundle of 437 pages. ii) An authorities bundle of 289 pages. iii) Skeleton argument on behalf of the Commissioner, dated 7 th November 2025, of 13 pages. iv) Submissions on behalf of the Appellant, dated, 7 th November 2025, and received by email.

33. Additionally, the panel had been provided with an email from the Appellant, dated 9 th November 2025, which linked to an article on the BBC News’s website entitled “BBC pay: How much do its stars earn?” . The article was dated 19 th July 2017 and was provided to the Respondent before the hearing commenced. The Appeal Hearing

34. An oral hearing took place by video link on 10 th November 2025 before this Tribunal. The parties elected not to call any live evidence, but instead made submissions in support of their respective cases, both orally and in written form. Summaries of those submissions are as follows: Submissions on behalf of the Appellant (i) The BBC has shown an appalling lack of accountability and transparency when spending licence payers money, having unreasonably used the exemption of ‘journalism, art or literature’ to avoid disclosing the individual salary costs of staff who are paid over £178,000 in relation to BBC entertainment and drama shows (Strictly Come Dancing and Casualty), which are not, by definition, considered to be ‘journalism, art or literature’. (ii) The BBC’s Annual Report for 2022/2023, at page 97, under the heading ‘Pay Disclosures’ which states that this is a “Report from the BBC Remuneration Committee of people paid more than £178,000 from licence fee revenue in the financial year” does not state that individuals from ‘journalism, art or literature’ are exempt from this report. (iii) Highlighting this discrepancy, the Annual Report, at page 98, includes a list of many staff within the description of ‘journalism, art or literature, such as staff within ‘News and Current Affairs’, such as Victoria Derbyshire etc, who is a journalist and is paid well over £178,000, which demonstrates that the BBC’s FOI exemption category of ‘journalism, art or literature’ and the legal authorities and precedence being advanced by the Commissioner and the BBC are absurd and have no legal merit. These have been superseded by the information provided within the BBC’s own Annual Report and have been used to cover up how the BBC is spending licence payers’ money. (iv) It is in the public interest for this information to be placed into the public domain, as the BBC has a history of financial mismanagement by overpaying individuals such as Gary Lineker, who received over £1.35 million of the licence payers’ money (as per page 100 of the BBC’s Annual Report for 2022/2023). This of course received bad publicity and was met with public ridicule, resulting in Mr Lineker agreeing to reduce his salary. (v) Another example of the public interest in the disclosure of this information is the BBC’s payment of over £200,000 in salary to Huw Edwards following his dismissible behaviour, again showing the financial mismanagement of the BBC, which they seek to cover up by using the exemption category of ‘journalism, art or literature’. (vi) In effect, the BBC is carefully selecting what information it wishes to release to the public and what it does not. Submissions on behalf of the Commissioner (i) Both appeals are advanced on identical grounds and amount to little more than an assertion that the requested information does not fall within the derogation. The Appellant has failed to set out in his grounds of appeal why the Decision Notices are not in accordance with the law. (ii) Having included the BBC within Part VI of Schedule 1 of FOIA, Parliament has decided what should and shouldn’t be within the scope of FOIA. If information is held for purposes of journalism, art or literature, there is no further analysis of the public interest or otherwise required. (iii) The wages of those removed from the BBC’s output, such as in the case of administrative staff or support staff, including cleaners or security guards, would be caught within the scope of FOIA. However, the wages of those producing ‘output’ for the BBC falls within the derogation and is not within the scope of FOIA. (iv) On any reasonable and objective view, the information being sought by the Appellant in these appeals is held by the BBC for the purposes of the BBC’s output. (v) There is a sufficiently direct link between the purposes for which the information is held and the BBC’s output, and as such, all of the requested information falls within the derogation and is therefore outside the scope of FOIA. Discussion & Conclusions

35. Although it has been suggested that the derogation provided to the BBC by virtue of section 7(1) and Part VI of Schedule 1 of FOIA is an exemption, it is an important distinction to make that it is not an exemption as such, but instead, it provides that the BBC is not to be treated as a public authority under FOIA where the information being held is for the purposes of ‘journalism, art or literature’. The effect of this is that FOIA has no application where this derogation applies, as FOIA only applies to public authorities. The exemptions under FOIA are instead to be found in Part II of the Act and under section 12 FOIA where there is a specific exemption relating to the cost of complying with a request for information.

36. The requests of 8 th December 2023 and 11 th January 2024 both relate to the fees or salaries paid to staff, presenters and participants involved with the 2023/2024 Strictly Come Dancing show which was broadcast by the BBC. The third request of 30 th March 2024 then asked for details of the salaries for all cast members involved in the Casualty drama, which was also a show broadcast by the BBC. Such information is, in our view, directly related to the broadcast output of the BBC, as in each instance the requests relate to the remuneration of those who are directly involved in the broadcasting of the two television shows. This includes cast members, staff or any others involved in the broadcasting of the Casualty show, and in the case of Strictly Come Dancing, this extends to presenters and participants involved in the show. This is far from being a tenuous link as might be the case if the request was in relation to the salaries or fees paid to administrative staff who were not involved in the broadcasting output of the BBC, and we are satisfied that the information being requested, in each instance, falls within the derogation of being held for the purposes of ‘journalism, art or literature’. The information being requested is therefore outside of the scope of FOIA. This would be so, even if the information was additionally being held for purposes other than those of journalism, art or literature, irrespective of the weight attached to that other purpose. Once it is established that there is a sufficiently direct link between the information being requested and the BBC’s output, the derogation applies and FOIA does not. The public interest arguments, advanced by the Appellant, are therefore not relevant considerations for this Tribunal.

37. The Appellant submits that the BBC is under a duty to disclose the salaries of all staff who are paid over £150,000 (adjusted to £178,000, as at June 2022, to reflect pay inflation as per the Royal Charter for the continuance of the British Broadcasting Corporation, dated December 2016). He points to the BBC’s 2022/2023 Annual Review and Accounts, at page 97, which provides a list of individuals, both ‘on-air’ and ‘off-air’, who received more than £178,000 from licence fee revenue in the year. That report lists individuals by categories of “News, Radio, Sport and presenters who work regularly across multiple parts of the BBC including Television” . Whilst this has no bearing upon FOIA and the question of whether the derogation applies, as it falls under a separate regime which is not a matter for this Tribunal, there are nonetheless a number of exclusions which are worth setting out in this instance in relation to the BBC’s ‘on-air’ talent. These include “Payments made by independent producers, royalties, repeat fees, contractual and other recoverables and expenses” . The figures additionally exclude “any recharges, amounts paid and investments into programmes made by [the BBC’s] commercial entities – for example BBC Studios.” . However, as has already been referred to above, the Royal Charter and the matters published within that report are not matters which are relevant to the derogation provided for by section 7(1) and Part VI of Schedule 1 of FOIA.

38. For the reasons set out above, we conclude that the Commissioner’s Decision Notices were not wrong in law, and we therefore dismiss the appeals. Signed: Date: Judge Armstrong-Holmes 1 st December 2025