The BBC and FOI

The British Broadcasting Corporation (BBC) is listed as a public authority for the purposes of the Freedom of Information Act 2000 (FOIA).  However, it is only covered insofar as the information requested is not held by the BBC for the purposes of journalism, art or literature.

For some time now that there has been a lot of disquiet about just how broadly the BBC apply this exemption.  The exemption is a legitimate one.  It would not be good for the licence fee payer if, as a result of the FOIA, the BBC had to release information about programming, including future programming.  It could harm the commercial viability of the BBC, which has an important overall aim.  However, it does appear that the BBC has taken the exemption as cart Blanche to refuse any request that relates to any of its programming, even in the slighest of ways.

A good example of this broad interpretation can be found in this request made to the BBC.  The request does relate to programming, but the question is whether the information requested is held for the purpose of journalism, art or literature.  The BBC seem to think so, but as detailed above anything that relates in the slightest way to their programming output is generally withheld.  Unfortunately, for the requestor in this example, the BBC is not also subject to the Environmental Information Regulations 2004 because had they been then it could be argued that the request is one for environmental information.

The current leading case (although it has been appealed to the UK Supreme Court with a decision due next week) is Sugar v The British Broadcasting Corporation and The Information Commissioner.  Of particular interest is the discussion at paragraphs 53 to 59 and it would certainly seem that based on the Court of Appeal’s decision that this particular request falls outside of the scope of the derogation provided to the BBC under the FOIA.  However, the applicant has indicated that the Information Commissioner agrees with the BBC on this particular request (although as I understand it no decision notice has yet been issued).

If the purpose of the derogation was to provide a virtually catch-all exemption for the BBC (the approach which the BBC and the Commissioner appear to have adopted) then it must be asked why make the BBC subject to the FOIA at all?  No real purpose would be served if all recorded information held by the BBC was exempt.  That suggests to me that there has been a fundamental flaw in the approach that the BBC and the Commissioner have taken.

The decision in the appeal currently before the United Kingdom Supreme Court is expected on Wednesday 15 February 2012 at 09:45.  This is a vitally important decision from the UKSC for the future of FOI as it relates to the BBC.  Whatever the decision of the Court as it relates to the information requested by the late Mr Sugar, it is vital that the Court produces a judgment in which they provide general guidance in Obiter as to the approach that should be taken by the BBC, the Commissioner, Tribunal and lower courts in determining whether information is “held” for the purposes of journalism, literature or art.  If the result is a continued existence of the broad interpretation currently taken then the matter should be looked at by Parliament.

The Justice Select Committee has recently stopped accepting written submissions as part of its post-legislative scrutiny of the FOIA.  I did provide a submission to the Justice Select Committee that I hope they will accept.  However, the unique position of the BBC as the main public service broadcaster did not feature in my submissions.  I suspect though that others will have mentioned the BBC in their submissions to the Select Committee.  It may well be the case that a tightening up of the derogation is needed.  I can’t profess to be an expert on what sort of tightening would be required or even how one would go about trying to work that one out.  It is difficult because there is a very good reason for exempting the information held by the BBC for the purposes of journalism, art or literature.  There is also a legitimate argument that an organisation which receives 100% of its funding from a Government levied “tax” should be open to public scruitny under the FOIA.  However, the question as to what should and should not be covered by this derogation remains.

I look forward to sitting down and casting my eye over the Supreme Court’s judgment next week and will certainly aim to blog next Wednesday on the content of the judgment.  The judges who heard the case are generally seinsble in their approach so I ame hopeful that some good guidance will comes out of this judgment.

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