BBC faces crunch ruling on FoI

The BBC is facing a landmark ruling from the Information Tribunal that will test a tactic it has used to reject more than 400 Freedom of Information requests.

A Press Gazette investigation has revealed details of FoI requests refused by the BBC that range from questions over the cost of the Newsnight helicopter to details of holidays taken in Majorca by presenter Kirsty Wark with Scottish First Minister Jack McConnell.

The BBC is only covered by the Freedom of Information Act 2000 "for purposes other than those of journalism, art or literature".

The scope of that derogation will be tested by the Information Tribunal on 14 June when it holds a hearing about whether the corporation should be compelled to publish a report on its coverage of the Israeli- Palestinian conflict written by senior editorial advisor Malcolm Balen (pictured).

London lawyer Steven Sugar's request for the report, made just days after the Act came into force in January 2005, has already been refused by the BBC and on appeal by the Information Commissioner.

Now Sugar is taking it to the ultimate appeal — a public hearing of the Information Tribunal.

Channel 4 and the Welsh broadcaster S4C, which are covered by the same FoI derogation, will be watching the decision closely.

Sugar said: "The question of law is whether the Balen Report is or is not held by the BBC for the purposes of journalism. I say it is not because it's a report about journalism rather than journalism itself."

James Leaton Gray, who heads the BBC Information Policy and Compliance unit, told Press Gazette: "The derogation is there to insure that the BBC, Channel 4 and S4C are able to maintain their editorial independence, and part of that is being able to come to decisions about the management of journalism and editorial structure that maintains that independence, so it's far wider than just scripts or journalists' notes."

Leaton Gray said a narrower interpretation could also put the BBC and Channel 4 at a disadvantage towards commercial competitors such as Sky and ITV, which are not subject to FoI requests.

He added that cases like Sugar's would define the outline of this poorly understood derogation.

"In a year or two, once a few of these cases have come through, it will be a lot easier, both for us and the public, to understand what's covered and what's not," he said.

If the Information Tribunal rules in Sugar's favour it could have implications for other FoI requests refused by the BBC under the same exemption.

These include:

  • details of the 25 highest paid BBC presenters;
  • the cost of the Newsnight helicopter;
  • annual cost of make-up and staff clothing allowances;
  • details of all fees, expenses and payments made by the BBC to politicians;
  • the number of internet domain names registered by the BBC that are not related to bbc.co.uk — such as tvswitch.co.uk

It could also affect some of the 53 FoI requests Channel 4 has refused on the same basis which include:

  • the supplier and cost of Jon Snow's ties;
  • the cost of its horse racing coverage;
  • the full breakdown of Big Brother voting.

In response to a Press Gazette FoI request, the BBC revealed that it checks whether the information requested is "actual broadcast content" or "information held for the dominant purpose of supporting output" when deciding whether to apply the derogation.

Sugar was forced to take his first appeal directly to the Information Commissioner, whose office has a large backlog of unresolved appeals, because the BBC has a policy of not offering internal review for requests that it has rejected on this basis.

In a letter written last February, assistant information commissioner Phil Boyd agreed that the corporation's approach seemed "perfectly reasonable".

Sugar said: "The Jewish community was very concerned about the media coverage — particularly the BBC coverage — of what has been described as the Second Intifada.

"Many people feel that the coverage has been biased against Israel. I take that view myself."

The Balen Report is believed to include an internal assessment of the BBC's impartiality in its coverage of the conflict.

Sugar said: "I think it's in the public interest that his report be made public, and that's why I have taken this action."

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