BBC BLOGS - Open Secrets
« Previous | Main | Next »

Judge overrules Tribunal on Balen

Martin Rosenbaum | 10:16 UK time, Monday, 30 April 2007

On Friday the High Court decided that the BBC does not have to make public the 'Balen Report', an internal report about the BBC's Middle East coverage which was written in 2004.

Some of the comment about this has been a little misleading, so it's worthwhile being clear about what the judge, Mr Justice Davis, decided.

The background is that the Freedom of Information Act applies to the BBC only 'in respect of information held for purposes other than those of journalism, art or literature'. This is called the derogation.

The BBC position is that the Balen report is held for purposes of journalism, and so is not covered by FOI. One of those who disagrees and would like to read it is Steven Sugar. He appealed to the Information Commissioner who backed the BBC. Mr Sugar then took the case to the Information Tribunal, which disagreed with the Commissioner and said Mr Sugar was entitled to see the report.

The first part of Mr Justice Davis's ruling is that the Tribunal should not have said this, because it does not have the legal power to overturn the Commissioner where the Commissioner has agreed with the BBC that information requested is held for journalistic purposes and is thus not within the scope of the FOI Act.

Note that this does not affect the Trbunal's ability to overrule the Commissioner on most issues, just on whether information comes under the derogations which apply to the BBC and a few other public bodies. This is because when the Commissioner upholds a derogation, it is not a formal 'decision notice' within the meaning of the FOI Act.

Mr Justice Davis clearly was not entirely happy coming to this conclusion, describing the necessary interpretation of the law as 'inconvenient', but he was persuaded that the BBC's legal submissions that the Tribunal had no jurisdiction to hear such an appeal were 'well-founded'.

So what legal recourse is open to someone like Mr Sugar who objects to what the Commissioner has done in a case like this? The answer is to seek judicial review of the Commissioner's actions (a more ambitious task than appealing a case to the Tribunal).

In the second part of his judgment Mr Justice Davis considered and then rejected Mr Sugar's application for judicial review, finding that the Commissioner's approach when he backed the BBC was lawful and rational.

So the High Court ruling concerns legal processes rather than a detailed assessment of the contents of the report.

In fact, Mr Justice Davis says in his judgment that, although the BBC offered it to him, he himself did not actually read the Balen Report. Nobody asked him to read it, and he clearly didn't think it was necessary in order to decide on the matters before him.

Comments   Post your comment

Sometimes you don't have to release something but should anyway. Spending over £72,000 of our money to stop us the people who paid for the report seeing it is pathetic.

The BBC looks like it has something to hide which is a lot more damaging than whatever Balen found.

  • 2.
  • At 05:09 PM on 30 Apr 2007,
  • Joseph wrote:

A shameful day for the BBC.

If you have nothing to hide release the report, you mention how successful you are at using the FOI act to get documents that are in the public interest released.

Yet this same act you have used to stop another document being released which is also in the public interest.

The only inferene that can be made is that the BBC is staffed by hypocrites and has a anti-Israeli bias.

Integrity and impartial reporting is the BBC's claim, I think you should change that to DOUBLE STANDARDS.

I also think you should get rid of the 'Open Secrets' blog, how are we ever going to believe the BBC again?, and how can you run a blog about freedom of information when you don't subscribe to it yourselves?.

  • 3.
  • At 04:31 PM on 01 May 2007,
  • Paul Dockree wrote:

Mr Sugar wants to read the Balen Report but is not able to yet and Judge Davis, whilst making the crucial decision saw no need to read the Report although offered it to view. Martin, you reported you haven't read it either. What an odd world.

Isn't there a tradition of allowing the Leaders of The Opposition or Shadow Chancellors a quick view of Governmental Papers and other things prior to important debates, Budgets, Wars etc.

Cannot someone sit Mr Sugar in a room and give him an hour to read the report without making notes or taking copies? Surely any objections he has can be memorised and put to the BBC as specific queries by Mr Sugar subsequently.

Being denied the thing has given
the Balen Report the radioactivity of the contents of the bag in the film "Kiss Me Deadly". THAT bag was truly Pandora's Box but I suspect Balen would be rather a damper squib.

  • 4.
  • At 03:11 PM on 08 May 2007,
  • Peter Galbavy wrote:

The BBC and double standards ? Impossible!

  • 5.
  • At 09:45 AM on 14 May 2007,
  • Stephen wrote:

I have thought long and hard about the ramifications of this case, and have come to the conclusion that the BBC has become too large and is prone to believe its own propoganda.

If any other taxpayer funded organisation had conducted internal reviews to ascertain whether it was in fact guilty of bias / discrimination, then the BBC would be determined to out that organisation particularly if that organisation sought to supress the findings.

I for one believe that the BBC is guilty of institutional bias when reporting on political matters, both in this country and overseas. A recent example was when Sarkozy was described as Right Wing, yet Royal was described as Socialist. What was the purpose of such a remark?

Why did the BBC treat the announcement by Blair re his stepping down as leader of the left wing party with hardly a critical word? I believe it was Peter Allan (Five Live) who stated to an interviewee that the only blemish on Blair's record was Iraq. How could any reporter who is allegedly impartial fail to recollect Ecclestone, Hinduja, cash for honours, MMR/autism, overcrowded prisons, rising inflation, the failure to maintain RAF Nimrods, etc.?

What would be really interesting would be an FOI request to the BBC by you with regard to any documents that relate to the BBCs apparent failure to maintain an even handed approach in its news reporting. Would that there was anyone out there with such gumption.

Well done. The release of this report would have led to demands from the redtop 'newspapers' for the BBC to present Israeli opinion as fact, and present all Palestinians as terrorists. I much prefer to have an objective source of reporting (and no, HYS users, 'objective' does NOT mean pro-Israel, it means pro-nobody).

  • 7.
  • At 06:00 PM on 15 May 2007,
  • Joseph, Maastricht, The Netherlands wrote:

Sorry David,

Your argumentation is totally worthless, I cannot remember one Israeli claiming that all Palastinians are terrorists, I suggest that you get out more and try and find a more balanced view of Israelis, your comments smack of anti-semetism.

As for you 'objective' reporting, how can you claim that when the BBC refuses to publish a report that may/may not show some form of bias against the Israelis?.

Also for the record the Sunday Times, Le Monde, De Telegraff have all asked in articles why the BBC does not publish the report, hardly your so called 'Red Tops' are they?.

People like you do the Palastinian cause damage, can you not see that it is better that this report is published to force open debate on the entire reporting of this tragic situation?.

Finally, it may amaze you that not all Palastinian opinion is objective or fact, one clear example of this is 'Jenin'.

So the BBC has a technical legal victory and doesn't have to release the Balen report. Hurray for the BBC eh?
Quite how this lends any moral authority to your own investigative journalism is beyond me. It seems clear that the release of this report would in no way have put at risk any sources.
I have generally admired the BBC but this whole sorry episode clearly tars the BBC with hypocrisy. How you can now press for disclosure from any other organisation is beyond me.

Lets be clear - the law didn't prevent you from releasing this report. It just provided a convenient bush for you to hide behind. Had the BBC wished to be open and transparent it could quite simply have released the report.
Hell - you would think we actually paid for your organisation the way we expect you to be accountable to us.

This post is closed to new comments.

More from this blog...

Latest contributors

BBC © 2014 The BBC is not responsible for the content of external sites. Read more.

This page is best viewed in an up-to-date web browser with style sheets (CSS) enabled. While you will be able to view the content of this page in your current browser, you will not be able to get the full visual experience. Please consider upgrading your browser software or enabling style sheets (CSS) if you are able to do so.