BBC begins key High Court FOI appeal

The BBC today begins a High Court action that could affect how much information about its journalism must be disclosed under the Freedom of Information Act.

At stake is whether the BBC should release an internal assessment of the BBC's coverage of the Israeli-Palestinian conflict written in 2004 by Malcolm Balen. Solicitor Stephen Sugar filed an FOI request for the document in January 2005.

Last September, the Information Tribunal ruled that the BBC should release the document. The BBC is now seeking to overturn that decision.

The Corporation considers this a key case in the development of the small body of law that determines the extent to which the Corporation must open its editorial activities to scrutiny under Freedom of Information.

According to Schedule 1 of the Freedom of Information Act, the BBC — like Channel 4 and Welsh broadcaster S4C — is only subject to requests about information it holds for purposes other than "journalism, art or literature".

To date, Sugar's two-year campaign to obtain the Balen Report is the case that has gone the farthest towards establishing a precise legal definition of that phrase.

In its ruling last year, the Information Tribunal attempted to define "journalism" as it applied to the FOI Act.

The Tribunal drew a distinction between "functional journalism" and "the direction of policy, strategy and resources that provide the framework within which the operations of a [public service broadcaster] take place".

The Tribunal decided that the BBC should release the Balen Report because at the time it was requested, it had been held for strategic, rather than for journalistic, purposes.

This month, the Information Commissioner rejected an FOI appeal over a FOI request for interview notes from the BBC Breakfast programme.

Citing the Tribunal's decision in the Sugar case now being appealed to the High Court, the Information Commissioner found that the interview notes, contained in the BBC's Electronic News Production System (ENPS), are not subject to FOI requests.

Even if the BBC appeal against the tribunal fails in the High Court, the corporation may seek to claim it is exempt from having to release the report to the public on other grounds.

Mr Sugar said: "You may see me still fighting this legal battle in 2010."

Last year, Press Gazette found that the BBC and Channel 4 had used their "journalism, arts or literature" derogation to reject hundreds of FOI requests.

A final legal win for Mr Sugar could mean the corporation having to release thousands of pages of other documents that have been held back.

The BBC said the Balen Report was always intended as "an internal review of programme content, to inform future output" and never intended for publication.

The corporation had already released the independent impartiality review on its coverage of the Middle East conducted by Sir Quentin Thomas's committee, a spokeswoman said.

She continued: "The BBC is asking the High Court to reconsider the Information Tribunal's decision that Mr Balen's review was 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."

She added that the corporation's decision had nothing to do with the fact Balen's review was about the Middle East and that the same approach would have been taken whatever area of news output was involved.

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