View all newsletters
Sign up for our free email newsletters

Fighting for quality news media in the digital age.

  1. Archive content
September 1, 2006updated 22 Nov 2022 8:52pm

BBC loses landmark FOI case over Middle East coverage

By Press Gazette

The Information Tribunal has ruled against the BBC in the first case testing the exposure of the corporation's journalism to requests under the Freedom of Information Act.

The tribunal decided that the corporation had been wrong to deny a request for an internal report about its coverage of the Middle East using a blanket derogation in the law that exempts the BBC from releasing information about its journalism.

The BBC, Channel 4 and Welsh broadcaster S4C are only covered by the Freedom of Information Act “for purposes other than those of journalism, art or literature”. In April, Press Gazette revealed that since the Act came into force in January 2005, the BBC had rejected more than 400 requests by citing the derogation.

Among the rejected requests was one by London solicitor Steven Sugar, who had asked the corporation to release an internal report on the corporation's coverage of the Israeli-Palestinian conflict, written in 2004 by senior editorial advisor Malcolm Balen (pictured). The corporation's decision to deny the request was later upheld on appeal by the Information Commissioner.

Overturning the Commissioner's ruling, the tribunal decided that the derogation does not apply to the Balen Report because at the time of the request the BBC had been using it for strategic, rather than for journalistic, purposes.

The tribunal's decision hinged on its assessment of the meaning of "journalism" in the FoI legislation and whether the BBC's claim that it held the Balen Report only "for the purposes of journalism" was accurate.

The tribunal decided that the key distinction was between "functional journalism" and "the direction of policy, strategy and resources that provide the framework within which the operations of a [public service broadcaster] take place".

Content from our partners
MHP Group's 30 To Watch awards for young journalists open for entries
How PA Media is helping newspapers make the digital transition
Publishing on the open web is broken, how generative AI could help fix it

The tribunal adopted a three-point definition of “functional journalism”, which “covers collecting or gathering, writing, editing and presenting material for publication, and reviewing that material”. The last element, the tribunal decided, includes steps taken to maintain editorial standards, such as the Balen Report.

However, because the report had later been considered by the BBC’s Journalism Board, the tribunal ruled that it was also used for "purposes of strategic policy and resource allocation" and therefore exposed to FoI requests.

The BBC will have to re-consider Sugar's FoI request. Sugar, the Information Commissioner's Office and the BBC have 20 days to submit proposals to the tribunal to agree their next steps and the procedure for any further challenges.

The tribunal decision now leaves the way open for some of the 400 rejected requests to be re-submitted. These include a request by Press Gazette for information on BBC journalists earning more than £100,000. 

Email pged@pressgazette.co.uk to point out mistakes, provide story tips or send in a letter for publication on our "Letters Page" blog

Select and enter your email address Weekly insight into the big strategic issues affecting the future of the news industry. Essential reading for media leaders every Thursday. Your morning brew of news about the world of news from Press Gazette and elsewhere in the media. Sent at around 10am UK time. Our weekly does of strategic insight about the future of news media aimed at US readers. A fortnightly update from the front-line of news and advertising. Aimed at marketers and those involved in the advertising industry.
  • Business owner/co-owner
  • CEO
  • COO
  • CFO
  • CTO
  • Chairperson
  • Non-Exec Director
  • Other C-Suite
  • Managing Director
  • President/Partner
  • Senior Executive/SVP or Corporate VP or equivalent
  • Director or equivalent
  • Group or Senior Manager
  • Head of Department/Function
  • Manager
  • Non-manager
  • Retired
  • Other
Visit our privacy Policy for more information about our services, how New Statesman Media Group may use, process and share your personal data, including information on your rights in respect of your personal data and how you can unsubscribe from future marketing communications.
Thank you

Thanks for subscribing.

Websites in our network