UK Liberty

The BBC and the FOIA

Posted in freedom of information by ukliberty on April 24, 2007

The BBC is, on the one hand, a big fan of the Freedom of Information Act and it certainly does some good work with it.

On the other hand, it doesn’t seem keen on freeing its own information!

Quelle surprise.

Exhibit A

Its attempts to keep secret the minutes from a BBC Governors’ meeting that would reveal the reasons for the decision to sack former Director-General Greg Dyke and apologise to the Government in light of the Hutton Report. See YRTK.

The Information Tribunal said,

We are left with an impression that the BBC had a greater concern with the maintenance of secrecy than with the specifics of why these particularly important minutes should or should not be published.

Exhibit B

Its attempts to block an FOIA request for the Balen Report – a 20,000 word internal report by Malcolm Balen on the BBC’s coverage of the Israel-Palestine conflict.

The Information Tribunal ruled that the report was not exempt from the Act because its dominant use at the time of the request was for the purposes of strategy – the BBC falls under the Act “in respect of information held for purposes other than those of journalism, art or literature” (Part VI, Schedule 1 Public Authorities).

138. Our finding means that the request was a valid request under s.1 FOIA and the Balen Report was held for a purpose within the remit of FOIA. This decides the second preliminary issue in this case. [the first being one of jurisdiction – ukliberty]

139. The Tribunal invites submissions from the parties on how Mr Sugar’s request should now be dealt with following this decision. The Tribunal considers there may be several possible options. Clearly, the effect of the Tribunal’s decision is that the BBC should now consider the request under the provisions of Parts I to IV of FOIA. The BBC might then send Mr Sugar a copy of the Balen Report, or issue a refusal notice under s.17 FOIA, or provide Mr Sugar with a redacted version of the Balen Report and issue a refusal notice in relation to the redacted parts. If the BBC issues a refusal notice then what is the process by which any exemptions claimed can be challenged by Mr Sugar? Should such challenge be considered by the IC in the first instance or dealt with by the Tribunal at a full hearing of this appeal? What time limits should be applied to this exercise?

The BBC went on to challenge this ruling (and the decision on jurisdiction) in the High Court – this by the way is the first Information Tribunal decision to be appealed to the High Court.

The BBC’s statement:

The Balen report has always been intended as an internal review of programme content to inform future output. It has never been intended for publication,

– the latter certainly doesn’t exempt it from the Act.

whereas the BBC has already released the independent impartiality review on the BBC’s coverage of the Middle East conducted by Quentin Thomas’s committee.

The BBC is asking the High Court to reconsider the information tribunal’s decision that Balen’s review is covered by the FOI act because it is very important that it obtains clarification from the courts about the extent to which the act applies. The BBC is also asking the Court to decide on the procedure that should be followed in cases where it is unclear whether or not the act applies.

The BBC’s decision has nothing to do with the fact that Balen’s review is about the Middle East – the same approach would have been taken whatever area of news output was covered by the review.

As I understand it, the High Court heard the case between 27-29 March. I don’t believe the decision has been published yet.

But the judge was reported to have said he would probably rule against the Tribunal on the issue of jurisdiction, and consequently Mr Sugar said he would seek a judicial review.

Update 30 April

The decision has been posted. The BBC’s objection that the Tribunal had no jurisdiction was upheld. Consequently the Tribunal had no power to make its second ruling on the matter: that the Balen report was held for purposes other than journalism. Mr Justice Davis permitted Mr Sugar to seek a judicial review challenging the Information Commissioner’s original ruling that the report was held for purposes other than journalism.

(Mr Justice Davis also mentioned that the BBC has been the subject of some 75 complaints to the Information Commissioner.  I do not know the substance of the complaints nor how this compares to Channel 4, which is the only similar ‘public authority’ so far as I can see from the Act).

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