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High Court rulings on the BBC and FOI

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Martin Rosenbaum | 15:07 UK time, Friday, 2 October 2009

Two High Court decisions today have narrowed the range of information which the BBC (and some other public bodies) could be forced to disclose to requesters under the Freedom of Information Act.

BBC signOne involves the long-running case fought by Steven Sugar for access to the "Balen report", an internal analysis of the BBC's coverage of the Middle East. The other relates to financial information about certain programmes.

As I've discussed on numerous occasions before, the FOI Act only applies to the BBC "in respect of information held for purposes other than those of journalism, art or literature".

This has led to much legal argument about information which is held for a variety of purposes, partly covered by this exclusion clause or "derogation" and partly not (for example, programme budgets kept both for journalistic and for financial management purposes).

Until now this legal dispute has centred mainly on the question of which is the predominant purpose for keeping the material, for that to be the criterion to determine whether or not it falls inside or outside the requirements of the FOI Act.

But Mr Justice Irwin ruled today that this "predominant purpose test" is wrong in law, and in fact information falls outside the FOI Act if it is held to any significant extent for one of the purposes mentioned in the derogation.

In the key passage of both judgements, the judge said:

"The BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes. The words do not mean that the information is disclosable if it is held for purposes distinct from journalism, art or literature, whilst it is also held to any significant extent for those listed purposes. If the information is held for mixed purposes, including to any significant extent the purposes listed in the Schedule or one of them, then the information is not disclosable."

The judge decided that the BBC was under no obligation to divulge the information at issue (although he did add that in these cases even on the basis of the predominant purpose test he would have ruled that the BBC was within its rights not to disclose the material).

These decisions also have similar implications for other public bodies which have a derogation in the Freedom of Information Act, such as Channel 4, the Bank of England, the Competition Commission and the Traffic Commissioners.


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