The Judicial Committee of the House of Lords decided last week to allow solicitor Stephen Sugar to appeal against a Court of Appeal ruling that the BBC did not have to disclose the Balen report on its Middle East reporting under the Freedom of Information Act.
The decision, noted in the Judicial Business section of the Minutes for 22 May, gave leave for Sugar’s appeal and said that the petition of appeal should be lodged by June 5.
Sugar, a commercial solicitor from Putney, south-west London, has been campaigning for the BBC to release the Balen report – written by senior editorial adviser Malcolm Balen – to be published as part of the on-going public debate about alleged BBC bias against Israel.
In January, the Court of Appeal rejected his appeal, upholding a decision by the High Court that the BBC was not obliged to release the report as it was exempt under the Freedom of Information Act.
When Sugar first made his request for release of the report under the Act, the Information Commissioner agreed with the BBC that, although it was listed as a “public authority” in the Act, it was exempted from having to disclose material held for the purposes of “journalism, art or literature” and the Act therefore did not apply.
Sugar appealed to the Information Tribunal, which backed him and said the report should be released.
The case then went to the High Court, where Mr Justice Davis accepted the BBC’s argument that the Information Tribunal had no jurisdiction to uphold an appeal because the case fell outside the scope of the Act and there had been no decision against which Sugar could appeal.
That ruling was upheld in January in the Court of Appeal by Lord Justice Buxton, Lord Justice Lloyd and Sir Paul Kennedy.
Sugar contends that the Freedom of Information Act has been badly drafted and is preventing disclosure of material which should be publicly available.
The BBC says the Balen report was always intended as an internal review of programme content, to inform future output, and was never intended for publication.
The corporation argues that it is vital for independent journalism that debates among its staff about how it covers stories should not be opened up to the public gaze.