A Freedom of Information campaigner today lost his five year bid to access an internal BBC report on its coverage of the Middle East and the Israeli-Palestinian conflict.
The Court of Appeal rejected solicitor Stephen Sugar’s attempt to overturn an earlier decision that the report was exempt from disclosure under the Freedom of Information Act because the corporation held it for “purposes of journalism, art or literature”.
The earlier decision by Justice Irwin found that an Information Tribunal was wrong in law when it ruled the report was not covered by the exemption and so should be disclosed.
Court of Appeal judges – the Master of the Rolls, Lord Neuberger, Lord Justice Moses and Lord Justice Munby – today upheld that decision and rejected Sugar’s appeal.
The report at the centre of the case was written by senior BBC journalist Malcolm Balen and covered BBC coverage of the Middle East in 2003 and 2004.
The report was considered by members of the BBC’s newly established Journalism Board in late 2004 and led to the board making a number of recommendations.
In January 2005, Sugar requested a copy of the report, starting litigation which led to the case going up to the House of Lords before returning to the Information Tribunal.
Lord Neuberger said today the Freedom of Information Act allowed that material held by the BBC was disclosable if it was held “for purposes other than those of journalism art or literature”.
But he accepted the BBC’s argument that, once it was established that the information sought was held by the corporation for the purposes of journalism, it was effectively exempt, even if it was also being held for other purposes.
“The purpose of limiting the extent to which the BBC and other public sector broadcasters were subject to FOI was ‘both to protect freedom of expression and the rights of the media under Article 10 of the European Convention on Human Rights, and to ensure that [FOI] does not place public sector broadcasters at an unfair disadvantage to their commercial rivals’,’Lord Neuberger stated.
“This is apparent, to my mind, as a matter of common sense, looking at FOI on its own, but it was also stated in terms to be the policy in a letter from the Department of Constitutional Affairs in 2003, which was admitted in evidence by the tribunal – hence the quotation marks.
“This suggests to me that, provided there is a genuine journalistic purpose for which the information is held, it should not be subject to FOI.
“After all, there must be a great deal of information held by the BBC which is not solely held for journalistic purposes, if ‘journalism’ is given the meaning which the tribunal accorded to it, and it could well have a chilling effect on BBC journalism and could well operate unfairly on the BBC against its commercial rivals, if any document held for journalistic purposes and another purpose was liable to be disclosed to the public.”
Lord Neuberger said that, in reaching its decision that the Balen report should be disclosed, the Information Tribunal made a two-fold error.
First, it had concluded that information was exempt only if the dominant purpose for which it was held was that of journalism, art or literature, he said, adding that “such information is exempt if journalism, art or literature is one of the purposes for which it is held”.
Second, was the “absence of any sensible basis” on which it had distinguished between the initial purpose for which the Balen report was held and the purpose for which it was held after November 9, 2004, when it was considered by the BBC’s Journalism Board, which it said was outside the exemption.
Lord Neuberger said: “In each case, the purpose for which the report was held was the same, namely to ensure that the BBC’s Middle East coverage was effective and impartial.
‘The only difference between the initial state of affairs and that after November 9 2004 was the level at which the ensuring of effectiveness and impartiality was being effected.”
Lord Justice Moses and Lord Justice Munby agreed.