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The BBC v Steven Sugar: The Balen Report

Martin Rosenbaum | 09:10 UK time, Tuesday, 27 March 2007

An interesting case about freedom of information and the BBC begins in the High Court today.

The case centres on what has become known as the 'Balen Report', an internal report written in 2004 by Malcolm Balen about the BBC's coverage of the Middle East. Numerous people have requested a copy of this report, but the BBC has refused to disclose it. The requesters included Steven Sugar, who is now fighting this case against the BBC.

It is worthwhile being clear about the unusual nature of the issue at contention in this case. Most important disputes involving FOI are about whether or not it is in the public interest to make certain items of information open to the public. This however is about a different matter - to what extent the BBC's information comes under the FOI law in the first place.

Information held by the BBC is subject to the Freedom of Information Act only if it is 'held for purposes other than those of journalism, art or literature'. This 'derogation' from the Act also applies to Channel 4 and S4C, the Welsh language channel.

The BBC's viewpoint is that the Balen Report is held for the purposes of journalism and so is not covered by the Act. Mr Sugar disagrees. He appealed first to the Information Commissioner, which backed the BBC, and then to the Information Tribunal, which did not. As I have noted previously when discussing the Balen Report, this is consistent with the general pattern I have anaylsed in which any overruling by the Tribunal of the Commissioner tends to be in the direction of greater 'openness'.

The BBC has now appealed to the High Court, which will therefore be devoting itself to examining the meaning of the word 'journalism'.

The BBC's corporate FOI team frequently receives information requests which the BBC argues are outside the remit of the FOI Act. Another recent case, in which the Information Commissioner again upheld the BBC's position, involved a request to see editorial notes relating to a television interview.

Commenters on this blog have sometimes in the past asked me for my views on the Balen Report, but as I have said before, since I have not read it I can't comment on its contents. However I hope this entry is a useful basic guide to the legal issues at stake in the case.

Comments   Post your comment

  • 1.
  • At 03:22 PM on 27 Mar 2007,
  • Paul Dockree wrote:

Martin - thanks for this on the Balen Report.

A more rounded view than "BBC hold firm its secrets and shows hypocrisy" Mr Bartlett. I will follow it now with a little knowledge

  • 2.
  • At 03:55 PM on 27 Mar 2007,
  • Amitabh Thakur wrote:

Mr. Martin,
Whatever you or BBC might say about the Balen report or any other case, to an outsider like me, it seems only logical that your documents and your papers shall be made as open as that of the government and the government related departments. As we all realize, the import and relevance of the media in today's time is no less than anyone else. Hence, what happens behind the walls must come out for the people at large. In fact this is the spirit of law and the BBC, being one of the front runners in the movement must follow it to the mark.
Amitabh Thakur,

  • 3.
  • At 04:12 PM on 27 Mar 2007,
  • Nutan Thakur wrote:

Why in any case is the BBC shying away from making the contents of the so-called Balen Report available to Mr. Steven Sugar? If the BBC really believes in the Freedom of Information as a basic right, does it not hold true for the BBC as well?
Is it not true that what one preaches must be practiced in its fullest intent?
Nutan Thakur,
Jan Shakti,


As we are forced to fund the BBC shouldn't the public get to read reports that it commissions whether the FOI act requires it or not?

This whole affair makes people wonder what is the BBC trying so hard and with other people's money to hide?

  • 5.
  • At 06:24 PM on 27 Mar 2007,
  • Mark S wrote:

Mr Martin

Why don't you just admit you are biased, apologise to Israel, change your group think, & save us (the public) money, instead of fight a court case?

Or is suppressing uncomfortable information & the promotion of Muslim victim hood is what you really do?

  • 6.
  • At 08:25 PM on 27 Mar 2007,
  • Andrew wrote:

I think it is important that people commenting on this blog posting by Martin recognise why it is necessary for the BBC to have protection for its journalistic material.

This is not to preserve some competitve advantage against privately owned news media that are not subject to the FOI Act.

It is because if the BBC were required to provide access to its journalistic material under FOIA, many of those it interviews to report on an event would cease to talk to it, fearing that their 'off the record' comments - which are invaluable to any journalist trying to understand a complex story - would become more widely available, and hence be 'on the record'.

Disclosure of journalistic material would also lead to attempts at 'prior restraint' on publication by the BBC, with those fearing that they may be about to reported in an unflattering manner, or be exposed for wrongdoing, using FOIA to try and gather material to justify taking out an injunction against the BBC to prevent it broadcasting the report/programme.

I also have no idea where the Balen report falls on the dividing line, since I've not seen it. But the balance might be fairly fine since the Commissioner took one view and the Tribunal another.

  • 7.
  • At 12:44 AM on 28 Mar 2007,
  • d.smith wrote:

My wife,who still enjoys the rubbish on television,buys our TV license.I have long had no confidence in the accuracy of your news reports so do not see why I should help fund you.Perhaps in another time you were trusted.Not today.Suppress the Balen report if you can but it will make no difference to the opinion many people now have of you.

  • 8.
  • At 07:36 AM on 28 Mar 2007,
  • geoff wrote:

There are many public organisations who would rather hide their sources and nature of their work be it medical practice in the NHS, provision of waste and refuse disposal for example in the local authorities, what and how education is taught in the schooling system and what source materials are used. Why should the BBC be exempt?.After all the BBC journalists use the FOI to get their information from publc corporations but they are unwilling to reveal a report which was commissioned with Taxpayers License money. As for protections for Art and Literature,it seems that the BBC does not believe in the free expresion of ideas and opinions. What a travesty of freedom defended by the British Broadcasting corporation. The public advisory Nolan Committee would surely not consider that the BBC was complying with reasonable standards of openness and transparency in the way the BBC is behaving in relation to the Balen report.

  • 9.
  • At 08:01 AM on 28 Mar 2007,
  • Paul Dockree wrote:

Another apology demanded, by whom on behalf of the BBC? "Mr Martin" mentioned twice reminds me uncomfortably of another web site. Flash mob also came to mind. Why?

We had one gentleman making a spectacle of himself on the abolition of slavery issue just yesterday. Demanding an apology from the Queen.

I suspect that was more about the protester themself than anything else. The Me, me, me society which I so detest.

All the above texts have been carefully read and I will just say it is not all reasoned. A document unread but the jury has sat and the BBC are guilty. Of what?

Say the BBC release this document and it doesn't say what seems to be assumed it says. Falsification charges to follow. Hmmm I trust if I am ever accused of anything I do not have a few of my fellow texters on any jury. I like more flexible opinions but may be that is just me.

This is the BBC's official statement on the case.

'The Balen report has always been intended as an internal review of programme content to inform future output. It has never been intended for publication, whereas the BBC has already released the independent impartiality review on the BBC’s coverage of the Middle East conducted by Quentin Thomas’s committee.

The BBC is asking the High Court to reconsider the information tribunal’s decision that Balen’s review is 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.

The BBC’s decision has nothing to do with the fact that Balen’s review is about the Middle East – the same approach would have been taken whatever area of news output was covered by the review.'

Turn on your speakers and click the link below and hear a 4 minute speech by a representative of "United Nations Watch" which was banned by Commission on Human Rights.

Could this be the type of middle east and world coverage that toothless aunt beeb is unwilling to report upon???

It must be helpful to all worldwide powers that be to have the UK news media gagging themselve on the grounds that the news was garnered
for "purposes of journalism, art or literature".

  • 12.
  • At 01:51 PM on 28 Mar 2007,
  • Paul wrote:

It does seem bizarre that the BBC is technicalities to block publication of a potentially damaging report.
Looking at the FOI requests the BBC does make (naughty Israel gets nuclear weapons, naughty Americans kill 655,000 Iraqis, naughty police fit-up saintly Greenham Common protestors, etc) its quite clear what the agenda is. No wonder the Balen report is kept locked up....

  • 13.
  • At 02:23 PM on 28 Mar 2007,
  • John wrote:


This is not a question of protecting sources. This is a question of how the BBC is run.

  • 14.
  • At 03:44 PM on 28 Mar 2007,
  • Paul Dockree wrote:


Let right be done but I have turned my attention to this Balen Report and I will sum up my feelings to date. "If they are all shooting at you(The Beeb) you MUST be doing something right".

Quote from one text above: Amitabh Thakur wrote: "to an outsider like me, it seems only logical that your documents and your papers shall be made as open as that of the government and the government related departments"

Mr Thakur assumes government departments are open just because of FOI.

I take the Independent newspaper which today did a vox pop on this subject (alleged bias by the BBC) and it strikes me that if you (the BBC) bend over too far one way you get it in the neck and vice versa. Greville Janner, Rod Liddell and a few others were asked and I came away with "they are all shooting at you"

I want just one time a negative report from someone being favoured by "this suggested bias" but the usual suspects are only concerned seemingly if they are painted as "in the wrong". Unbiased reporting would take forever and suggests fair actions by all parties/countries all the time. Not in my lifetime. All countries have done things they may be ashamed of - all countries.

I think I was right in my earlier text but will bend if convinced. The case is being considered by better minds than mine but don't tell me the Beeb needs to apologies to anyone - just do their best to be fair to all.

Most of the above texts seem to ask for bias FOR Israel.

  • 15.
  • At 06:30 PM on 28 Mar 2007,
  • david jones wrote:

Firstly, credit to Martin for addressing this.

Exemptions in the Act are there for good reason. Unfortunately, many public bodies, the BBC included, have not caught on to the 'change of culture' necesary to see everything as freely available unless there is a particular legitimate reason not, and are using this equivocation over 'journalism' to avoid releasing an embarrassing report. Are there sources that need protection ? stories that the BBC don't want to be scooped on ? Hard to imagine.

On Monday I implied Martin was being hypocritical in covering his eyes towards the BBC's actions whilst trying to hold other bodies to account. I apologise for that - it's not hypocritical. However, in truth, it's not exactly admirable either...

I suppose there's a difference between a journalist being 'professional;' in the sense of following accepted ethics and goals (e.g. uncovering corruption)and 'professional' in the sense of picking up a salary at the end of the month.

  • 16.
  • At 08:56 PM on 28 Mar 2007,
  • Joseph wrote:

Paul in blogs 1, 9 & 14 (which shows some bias considering no-one else is ever allowed more than 1 post) defends and defends the BBC, yet he fails to strike home one point.

He ignores the central question, all he does is complain that people are questioning the BBC's so called impartiality, sorry Paul but this is not 1970's Russia and people are allowed a different perspective.

If as Paul seems to be claiming that the BBC is great what harm is their in publishing the 'Balen' report?.

Andrew uses the excuse that it would be dangerous to publish this report because it could expose someone who gave an 'off the record interview'!, this comment left me speechless was it not the BBC who broke an agreement to not name the original suspect in the 'Ipswich murders'?.

It seems that the left leaning viewers of the BBC seem to suffer from the same myopic views as that of the right wing viewers they so love to attack.

So until the BBC publishes this report the only conclusion I can come to is the following : Yes the BBC is biased and should be made to apologise for wasting our tax payers money on questionable appeals regarding court cases that they have already lost.

And in the interests of impartiality I would be grateful if you publish my comments.

Joseph -

You are entitled to your view of the BBC, but I must correct you on one point. I can assure you that there is no limit placed on the number of posts allowed from people who attack the BBC. You may think the BBC is biased in general, that's up to you, but there is no bias in the comments policy on this blog (as should be obvious to anyone who actually reads it). I have never blocked a comment because it criticised me or the BBC.


Since this High Court case represents a major issue of how the FOI legislation effects a major public body like the BBC one would think that this would be a very newsworthy item yet I have barely heard any mention of this cas eon the main BBC news. I wonder why? Could it be that the BBC which normally trumpets its championing of the freedom to publish is in this case a little "shy" about its own attempts to supress information? I dont know what is in the Balen report and if it makes a case for BBC bias. What I do resent is the BBC's two faced attitude to freedom of information.

  • 19.
  • At 08:25 AM on 29 Mar 2007,
  • Paul Dockree wrote:

I thought this was a discussion board, Joseph and now I am being called a mouthpiece for the BEEB? Russian suppression.

Read my pieces - I came here originally for a FOI reason and stayed because I love discussion in general. And as I say, come back at me - and if I am wrong I will 'fess up. But do not come with a seemingly one sided view and if I disagree in effect yell "you are part of the conspiracy". I will give it short shift.

  • 20.
  • At 08:32 PM on 29 Mar 2007,
  • Roger Roberts wrote:

What you see depends on where you stand. As a left wing organisation the BBC obviously sees the FOI Act as a tool for prising secrets from the establishment but refuses to see that as a public body it must abide by it too.

  • 21.
  • At 12:16 PM on 30 Mar 2007,
  • Joseph wrote:

Dear Martin and Paul,

May I first of all thank you both for taking the time to respond to my comments and provide me with feedback.

I have re-read my comments, I accept that my comments were not particularly constructive, so I apologise if either of you felt that I was attacking you personally. I agree entirely with Paul's comment that I actually contradicted my own argument, and I also accept that my personal view of certain BBC policies are not representative of everyone

My main point does stand, why not publish the 'Balen' report?, I cannot see how it will impact the BBC reporting news events or discussions with anonymous sources.

I can understand that certain topics are sensitive for business reasons, but this is surly a topic which comes under the banner 'National Interest' as it would refute/show if the BBC is impartial or biased in some areas of it's reporting?.

  • 22.
  • At 03:00 PM on 30 Mar 2007,
  • Paul Dockree wrote:

Joseph, Thank you.

I must say I am becoming intrigued by this Balen report - "The BBC Behind Closed Doors" - when it was Washington Behind Closed Doors it was something called the Primula Report and it got more terrifying because it was never seen.

But like that juicy apple just out of reach of a little lad scrumping hand - let us hope it isn't maggot-ridden in disappointment on the other side if it does get released by The BBC. I I hope to see such fervour from all sides if some Institution is reputed to hold a report that shows any country in a bad light. Now about that nuclear spy.........

  • 23.
  • At 07:15 PM on 02 Apr 2007,
  • Paul Dockree wrote:

Oh - it went quiet, Martin. I wonder why? LOL

  • 24.
  • At 10:57 PM on 04 Apr 2007,
  • Richard Sambrook wrote:

As the person who commissioned the Balen report (but is no longer involved in the decisions about whether it should be published or not) I can say that if it is ever released there will be many disappointed people. There is no "smoking gun" and indeed in my view it says rather less than the BBC Governors review of Mid East coverage which was published last year. The issue, as Martin explains, is a legal principle and trying to establish where the boundaries of the derogation lie - which is important for many organisations, not just the BBC.

  • 25.
  • At 06:05 PM on 05 Apr 2007,
  • Joseph, Maastricht, The Netherlands wrote:

Well Richard glad you cleared it all up with your comment, if you say that you have nothing to hide I am sure that you will now release the blasted report and show how silly some of us have been!.

I cannot accept that you think it says less than the BBC Governors review from last year, if it did why have you appealed the courts verdict?.

Of course I have a biased view on the BBC, however, I am honest enough to admit it, if the BBC has a biased view on certain topics than you should be honest and admit it.

To finish I must commend you for actually responding to the comments published here, it is appreciated even if the message you wish to put across is not going to convince a cynic like me.

  • 26.
  • At 10:36 PM on 06 Apr 2007,
  • George wrote:

my concern is not much the result -although I have to confess that I would love to read the mentioned report. Today BBC is saying that this is not about Israel, rather about the FOI itself. If eventually BBC wins, then I am curious how the outcome will be presented to the public by the BBC: (a) as it has been presented to Justice Davis [this is to say, "to what extend BBC´s information comes under the FOI"] or (b) as a "proof" that BBC was not biased [BBC already conveyed a counsel of wise men who declared that there is bias] .
In conclusion, it is not much about the case itself but rather on what BBC says the case is about. Will they hold two different intepretations? stay tuned...

  • 27.
  • At 03:04 PM on 08 Apr 2007,
  • jenny wrote:

17 - And in turn I’ll have to correct you. You may have never blocked a comment critical of the BBC, but not only do the BBC block posts by people who as you put it ‘attack’ the BBC, they also ban them from using large swathes of the BBC’s user generated services.

As for the Balen Report…. It was paid for by the licence payers and now the BBC are spending more licence payers money making sure licence payers can’t read it. By any definition if the word, accountable it is not.

  • 28.
  • At 10:09 AM on 25 Apr 2007,
  • Ben wrote:

'Nation shall speak truth unto nation' - remember that?

  • 29.
  • At 07:25 PM on 27 Apr 2007,
  • Paul Dockree wrote:

I heard Mr Sugar had his earlier decision for his FOI request turned over by the Appeal Court. So what next? Keep going back until the "right" decision is achieved?

And Number 28 Ben. If that were so about nations and truth speaking - they wouldn't have had to invent the diplomatic posts - where allegedly they are sent abroad to lie for their countries.

  • 30.
  • At 12:16 PM on 04 May 2007,
  • John wrote:

I do find it somewhat hypocritical that the BBC is refusing to disclose this on the grounds that it would inhibit future internal discussions amongst journalists. At the same time the BBC is campaigning for full public disclosure by MI5 of classified information regarding anti-terrorist operations and decision making. Where is the BBC's moral authority in demanding openness from other organisations?

Isn't it about time that BBC came clean.

In view of the the latest report on failures in the BBC and political correctness, the BBC should now admit that the Balen Report should have been isssued to the public, in that the BBC's non impartiality on Israel was questioned at that time, and now the BBC have commissioned a report which illustrates the same thing, but even more so.

In the BBC's own words
'Impartiality is no excuse for insipid programme-making '

Richard Tait, BBC Trustee

The report also quoted former political editor Andrew Marr, who said the BBC has an "innate liberal bias".

I think the case for non ipartial reporting and programme making is clear, and the BBC should admit their failures with the release of Balen report.

  • 32.
  • At 03:06 PM on 18 Jun 2007,
  • Joseph wrote:

Irony of Irony the BBC's own internal report confirms what the rest of the country has known for years that the BBC is biased.
All the newspapers are carying this story today the BBC are not!.
The BBC must now publish the 'Balen' report, I cannot see how the BBC can claim to be impartial in how it presents current affairs etc.
I suppose the BBC will finally get around to commenting on this latest report, however, it will do it in it's normal style i.e. 'The BBC may have made some mistakes, and we will learn from them', of course the BBC will do no such thing, the BBC will continue to misrepresent the news as it has done ever since it allowed itself to become a mouthpiece for any minority group with a grudge.
Finally, to quote the BBC's very own Rod Liddell in the 'Sunday Times'; the BBC needs to stop recruiting journalists just from the 'Guardian'.

  • 33.
  • At 08:15 PM on 19 Jun 2007,
  • Peter wrote:

Over the past few months I have contributed to the BBC Radio 5 World News Messageboard regarding the Balen Report.

I have used various silly names such as Willy_Waver or Mr_Unpopular (a bit daft - but doesn't harm anyone) to ask why it is that the BBC strenuously trying to hide the Balen Report.

I already knew the BBC didn't want too much attention attracted to news about the report, however I didn't expect all of my postings to be removed and my entitlement to post messages cancelled.

Yes - I'm banned from the Messageboards for raising the topic and repeatedly asking questions about it.

I can't see which of the BBC 'House Rules' the raising of this subject might - but I can imagine it must be irritiating for the BBC to host questions about thier behavior on their own platform.

At a click of the mouse: the BBC are able to remove any annoying questions asking them to prove their self proclaimed impartiality.

  • 34.
  • At 11:03 AM on 06 Jul 2007,
  • Sam wrote:

The BBC has no right to hold any of its information, journalistic or not, from the public.

This is the most unbeleiveable case of hyposcrisy i have ever seen. The government should force the BBC to release the Balen report or as a consequence remove its funding.

You have to ask yuorself why the BBC wishes to block it. The only conclusion you can draw is that the BBC knows it is a partisan liberal biased organisation that is not loyal to the labour party per see but is loyal to its own liberal agenda. Hence why the BBC has been critical of Tony Blair but at the same time in a general sense is very pro New Labour.

As for the middle east you only need to look at the amount of self gratifying vulgar diplays about alan johnstons kidnapping and compare them to the total lack of any journalism about gilad Shalit to conclude that the BBC is both bias and anti semetic.

The BBC should be ashamed.

  • 35.
  • At 06:50 PM on 12 Jul 2007,
  • Albie wrote:


The BBC was forced to make an embarrassing apology to both the Royal Family and the photographer Annie Leibovitz today, after a promotional trailer wrongly showed that the Queen had stormed out of a photoshoot during a fly-on-the-wall documentary.

The BBC said in a statement: "This was not the case and the actual sequence of events was misrepresented."

This says it all really!

  • 36.
  • At 04:19 PM on 20 Aug 2007,
  • Jonathan wrote:

I for one find it hard to take any protestations of the BBC for the freedom of information whilst they refuse to publish the Balen Report.

Come back to me when you practice what you preach!

There's a flaw in your argument. That the FOI Act doesn't cover the report is no reason not to release it. The BBC may publish it regardless of the FOI Act.

So why doesn't it? When can I stop paying for you?

  • 38.
  • At 03:24 PM on 25 Aug 2007,
  • Martin Rosenbaum wrote:

As things stand you have to keep paying for me until you reach the age of 75 or cease to own equipment capable of receiving television pictures. Sorry about that. But the good news is that if you did dispose of your TV you'd still be to get access to this blog, and for free.

  • 39.
  • At 09:18 PM on 29 Aug 2007,
  • Max Sceptic wrote:

"As things stand you have to keep paying for me until you reach the age of 75 or cease to own equipment capable of receiving television pictures".

What's new? We all know that the beloved Beeb is not only secretive and arrogant, but extortionate too. Back to the main subject: When will the BBC publish the Balen Report - a document I, and all other TV licence/tax-payers funded?

  • 40.
  • At 05:06 AM on 09 Sep 2007,
  • zeroKnots wrote:

So what happens when matter/anti-matter or spin/white-wash meet?

Better not let this article get too close to any about the U.S. or Israel.

I crack myself up.

  • 41.
  • At 05:29 AM on 09 Sep 2007,
  • zeroKnots wrote:

But naah, I know the real tune being fiddled here.

This is Microsoft showing the public: "See? We got all our anti-trust issues done, you can trust us now." The entire suit orchestrated in advance for that PR.
Now look at their position.

The Balen Report will be published after accumulating sufficient interest, and it will turn out dissapointingly benign.

Nice try, Aint Bee.

  • 42.
  • At 05:32 AM on 17 Oct 2007,
  • Steven Traveller wrote:

There is no mystery as to what the Balen report says. The actions of the BBC make the content of the report crystal clear. Does anyone think that the BBC would withhold the report if it gave the BBC kudos for impartiality? Anyone who follows BBC coverage of the Middle East knows the truth.... shame on you BBC!

  • 43.
  • At 10:12 AM on 19 Oct 2007,
  • Michael wrote:

I understand the High Court has indicated that it will issue a ruling that, because the ICO agreed with the BBC (that the the report was excludedfrom the Act), the Information Tribunal has no jurisdiction to hear an appeal.

So, if the ICO agrees with a public body that information is outside the scope of the Act, there will be no right of appeal to the tribunal.

Conversely, if the ICO agrees that information does fall within the scope of the Act, the public body will still have a right of appeal to the tribunal.

So it looks like the BBC will be able to keep their secrets secret.

  • 44.
  • At 10:57 AM on 19 Oct 2007,
  • Michael wrote:

By the way, as the BBC have stated that the content of the report really isn't that bad, and they are just fighting disclosure to 'clarify a technical issue', once all the legal arguments are finished (one way or another), and the 'technical issue' is 'clarified', will the BBC choose to make the report public anyway?

  • 45.
  • At 01:33 PM on 16 Nov 2007,
  • Paul Davies wrote:

For some years I have been remonstrating with those in authority (well, allright, in office) about a local planning decision in which there was clear breach of statutory duty. Subsequently connected with this fiasco were various errors of omission and commission perpetrated by BBC Wales, which has stoutly invoked the above-mentioned derogation to justify its non-disclosure of information. Serviceable a piece of kit as this may be to the BBC, it is not so serviceable to the public interest - which would certainly be served by the disclosure of the information being sought. And yet BBC Wales has the gall to blazon on its website the slogan "Accountable to you."!

Attempts to raise the matter of the BBC's stewardship of the public interest with the BBC Trust have been blocked by the equally arbitrary and effective pretext of ruling the complaint inadmissible.

Openness and accountability? Please tell me about it!

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