BBC freedom of information exemption challenged at Court of Appeal

The BBC is facing a renewed legal attempt to force public disclosure of an internal review of its Middle East reporting.

Three judges at the Court of Appeal in London were urged to overturn a High Court ruling which blocked a claim by lawyer Steven Sugar that the report should be made public under the Freedom of Information Act.

The BBC has been accused of biased reporting against Israel in its coverage of the Israeli-Palestinian conflict.

Sugar, a commercial solicitor from Putney, south-west London, contends that the report, by senior editorial adviser Malcolm Balen, should be published as part of the on-going debate about alleged BBC partiality.

The BBC says the Balen report was produced “for purposes of journalism” and therefore falls outside the scope of the Act.

It also argues that its refusal to disclose the report is not open to challenge because it is not a “public body” within the meaning of the Act.

At first instance, the Information Commissioner agreed with the BBC. Sugar took the case to appeal and the Information Tribunal backed him.

But High Court judge Mr Justice Davis then accepted the BBC’s argument that the tribunal had no jurisdiction because the case fell outside the scope of the Act.

The judge described the position as “most odd” and “potentially inconvenient in its consequence”, and said there were “powerful reasons in favour of there being a right of appeal to the tribunal in circumstances such as the present”.

Sugar says the exemption in the Act denying public access to information held for the purposes of “journalism, art or literature” was badly drafted and was preventing disclosure of material which should be publicly available.

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

It says it is vital for independent journalism that debates among its staff about how it covers stories do not have to be opened up to the public gaze.

Lord Justice Buxton, Lord Justice Lloyd and Sir Paul Kennedy were told yesterday that, even if Sugar won his appeal on the preliminary issues of jurisdiction and exemption and the case was sent back to the tribunal for reconsideration, he would not necessarily win the case because other factors might be decided against him.

The appeal hearing is set for two days. The court is expected to reserve judgment.

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