The battle between a solicitor and the BBC over access to an internal report the corporation prepared on its coverage of the Israeli-Palestinian conflict is to go to the Supreme Court.
An appeal panel consisting of Lord Hope, Lord Clarke and Sir John Dyson gave permission for the appeal by Steven Sugar against the Court of Appeal’s refusal to overturn the first instance decision by Mr Justice Irwin that the report was exempt from disclosure under the Freedom of Information Act (FoIA) because the corporation held it for “purposes of journalism, art or literature”.
Sugar has been battling to get access to the Balen Report, an examination of the corporation’s coverage of the Middle East in 2003 and 2004 which was written by written by senior BBC journalist Malcolm Balen.
Members of the BBC’s newly established Journalism Board considered the report in late 2004 and subsequently made a number of recommendations.
In January 2005 Sugar requested a copy of the report, starting litigation which led to the case going all the way to the House of Lords before returning to the Information Tribunal, the decision of which was overturned by Mr Justice Irwin.
Sugar then went to the Court of Appeal. But the court – the Master of the Rolls, Lord Neuberger, Lord Justice Moses and Lord Justice Munby – upheld Mr Justice Irwin’s decision in a judgment on June 23 this year.
The Master of the Rolls said in that decision that he accepted the BBC’s argument that once it was established that the information sought was held by the corporation for the purposes of journalism, it was effectively exempt from production under the Act, even if it was also being held for other purposes.
“The purpose of limiting the extent to which the BBC and other public sector broadcasters were subject to FoIA was ‘both to protect freedom of expression and the rights of the media under article 10 of the European Convention on Human Rights, and to ensure that [FoIA] does not place public sector broadcasters at an unfair disadvantage to their commercial rivals’.
“This is apparent, to my mind, as a matter of common sense, looking at FoIA on its own, but it was also stated in terms to be the policy in a letter from the Department of Constitutional Affairs in 2003, which was admitted in evidence by the Tribunal – hence the quotation marks.
“This suggests to me that, provided there is a genuine journalistic purpose for which the information is held, it should not be subject to FoIA.”
Lord Neuberger said that it reaching its decision that the Balen Report should be disclosed, the Information Tribunal made a two-fold error.
The first was that it concluded that information was exempt from disclosure only if the dominant purpose for which it is held was that of journalism, art or literature, he said, adding that “such information is exempt if journalism, art or literature is one of the purposes for which it is held”.
The second was the “absence of any sensible basis” on which it had distinguished between the initial purpose for which the Balen Report was held and the purpose for which it was held after November 9, 2004, when it was considered by the BBC’s Journalism Board, which it said was outside the exemption.
Lord Neuberger said: “In each case, the purpose for which the report was held was the same, namely to ensure that the BBC’s Middle East coverage was effective and impartial. The only difference between the initial state of affairs and that after 9 November 2004 was the level at which the ensuring of effectiveness and impartiality was being effected.”