BBC set to win FOI battle over Israel report

The BBC looks set to win a High Court battle arising from the Information Tribunal's decision that a member of the public had the right to see an internal report on its Middle East coverage.

A judge indicated on Wednesday that he is minded to rule that the tribunal lacked jurisdiction to consider the issue.

Corporation critics, including members of the Jewish community, want to know if the report, written in 2004 by senior editorial advisor Macolm Balen and believed to run to 20,000 words, includes evidence of anti-Israeli bias in news programming.

The expected judgment against the tribunal will come as a blow to commercial solicitor Steven Sugar, who has fought a lengthy and expensive battle to get access to the Balen Report under the Freedom of Information Act.

The Information Commissioner, Richard Thomas, backed the BBC decision blocking access, but the Information Tribunal ruled in favour of Sugar when he appealed.

In a case with wide implications for the future working of the Freedom of Information Act and its impact on public broadcasters, Mr Justice Davis said at London's High Court he was planning to rule the tribunal acted outside its powers.

He said he would give his decision with full reasons in the near future, probably after the Easter holiday.

But Sugar is still left with hope that he may still win access to the report via another route.

At the same time the judge rules on the jurisdiction issue, he will give his decision in an entirely separate application made by Sugar.

In the second case, Sugar is seeking judicial review, arguing that in any event the Information Commissioner acted unlawfully by blocking access to the report.

Sugar said the judge's ruling on the tribunal's jurisdiction would be a serious blow to freedom of information laws.

He said: "It creates very considerable difficulties for the administration of the Freedom of Information Act and is against the public interest.

"The judge himself said he was very unhappy about the outcome.

"We don't have the judgment yet, but it will probably mean that, if members of the public cannot go to the tribunal, the only way they will be able to challenge decisions of the Information Commissioner will be to seek judicial review at the High Court, which can be very expensive."

Sugar added: "I am disappointed in relation to the jurisdiction of the tribunal, but can't say I am entirely surprised as it is a difficult point of law.

"I await the result of my judicial review application with high hopes."

The BBC said it welcomed the judge's indication that he was going to rule in the corporation's favour with regard to the Information Tribunal.

A spokesperson said: "This clarifies that, in cases where the Information Commissioner agrees with a public service broadcaster that the information sought is outside the scope of the Freedom of Information Act, there is no appeal to the Information Tribunal.

"We await the court's decision on Mr Sugar's case against the Information Commissioner's ruling that the BBC does not need to release the Balen report."

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

Along with Channel 4, Britain's other public service broadcaster, the BBC is allowed to hold back material that deals with the production of its art, entertainment and journalism.

On this basis, the corporation has rejected more than 400 Freedom of Information requests.

Sugar's central argument was that the Balen Report was not held by the BBC for the purposes of journalism "because it's a report about journalism itself", and therefore he was entitled to apply to see it under the Freedom of Information Act.

If he wins his application for judicial review, it 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.

A spokesperson said the corporation's decision had nothing to do with the fact Mr 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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