The BBC v Steven Sugar: The Balen Report
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.