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Balen Report: The case continues

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Martin Rosenbaum | 08:22 UK time, Wednesday, 9 February 2011

Today was to have seen a Supreme Court hearing - and thus possibly the final stage - in the most long-running legal dispute involving freedom of information since the law came into force.

BBC and Union flag outside BCB TV Centre


However that case will not be happening this Wednesday, following the death last month of the man who initiated it and has been fighting it for several years, a London solicitor named Steven Sugar.

The dispute also involves the BBC. On 8 January 2005, a few days after the right to make FOI requests became active, Mr Sugar asked the BBC for a copy of the Balen Report, an internal report assessing the corporation's coverage of the Middle East which had been compiled in 2004 by an editorial adviser, Malcolm Balen.

The BBC is only partly covered by the Freedom of Information Act. According to Schedule 1, the organisation is only subject to FOI "in respect of information held for purposes other than those of journalism, art or literature". The corporation argues this exception is needed to protect the editorial independence of programme-makers.

Mr Sugar's request was rejected by the BBC on the grounds that the Balen Report constituted journalistic information. After he then appealed to the information commissioner, the case become embroiled in a complex and lengthy dispute over legal technicalities and the extent of the Information Tribunal's [156KB PDF] right to intervene when the commissioner has discarded a complaint as outside the scope of the FOI Act. This process, which I wrote about on various occasions, went all the way to the House of Lords in 2009.

After that was settled the dispute moved on to other, less procedural matters. These haven't actually focused on the principle of whether disclosing the report would threaten journalistic freedom or be in the public interest, but they have been about how far the BBC is affected by FOI law.

The key legal argument has revolved around information held by the BBC for more than one reason, both for journalistic and for other purposes - when and how is that covered by FOI? Following the tribunal's earlier verdict that the Balen Report had become predominantly a matter of strategic policy and resource allocation rather than journalism, this question has been working its way through the legal system.

The current legal position, as expressed by the High Court and upheld by the Court of Appeal, is that "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".

On this basis the courts ruled that the BBC was entitled not to release the Balen Report. Mr Sugar's appeal against this was the case due to be heard today at the Supreme Court.

This leaves the BBC in the position of being able to turn down any FOI request for material which is kept, even if only partly, for programme-making or editorial purposes. This is also the principle employed by the information commissioner when considering complaints about the BBC.

The corporation often receives FOI applications for information held for multiple reasons (eg financial management or governance, as well as programme-making). The First-Tier Tribunal [52KB PDF] has a backlog of several cases involving the BBC which had been stayed pending the outcome of the expected Supreme Court hearing.

However the extensive and convoluted legal battles over the Balen Report have not yet come to an end. It may be possible for someone else to pursue the appeal on Mr Sugar's behalf.

So this particular FOI dispute, and also the more general question of the extent of the BBC's obligations under the Act, are yet to be finally determined.

The Supreme Court says that it has now listed the case provisionally for another hearing in the autumn. It seems unlikely that a judgment would then be handed down before 2012, over seven years after Mr Sugar's initial request.


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