Feb
15

BBC wins supreme court victory over Middle East report publication

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Balen review held for purposes of journalism, art or literature, rule justices, and is not subject to Freedom of Information Act

Documents held at least partially for the purposes of journalism, art or literature are not subject to freedom of information requests, the supreme court has ruled.

Five justices unanimously upheld the BBC’s decision not to release an internal review of the corporation’s broadcast coverage of the Middle East, rejecting a request from an applicant who has died since launching his case six years ago.

The document, known as the Balen report, was drawn up for circulation within the BBC in 2003. It examined the quality and impartiality of BBC coverage of the Israeli-Palestinian conflict.

In 2005, Steven Sugar, a London solicitor, made a freedom of information request for disclosure of the report, which had been drawn up Malcolm Balen, a senior journalist and editorial adviser at the BBC.

Sugar died in January 2011 but his widow, Fiona Paveley, continued to pursue the case and was allowed to represent his interests in the continuing legal action. The BBC had initially refused the solicitor’s application on the grounds that the report was outside the scope of the Freedom of Information Act (FOIA) 2000 because it was held for “purposes of journalism, art or literature”.

An information tribunal had ruled in favour of Sugar’s application but the finding was overturned by a high court in a decision subsequently upheld by the court of appeal last year.

In their judgment, the five supreme court justices unanimously dismissed the appeal. All agreed that the report was “outside the scope” of the FOIA, as the high court and appeal court had ruled.

Four of them, Lord Phillips, Lord Walker, Lord Brown and Lord Mance, dismissed the appeal on the basis that, even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of freedom of in formation (FIO) requests.

The fifth justice, Lord Wilson, made the distinction that he would have dismissed it on the basis that, if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of such FOI requests and that the Balen report was held predominantly for those purposes.

The judgment suggests, however, that at some future date when the information is being held only for archival purposes, it might be open to release.

Phillips, president of the supreme court, observed in his decision: “Disclosure of material that is held only in the archives will not be likely to interfere with or inhibit the BBC’s broadcasting functions. It ought to be susceptible to disclosure under the act.”

Owen Bowcott

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from Owen Bowcott

via http://www.guardian.co.uk/politics/2012/feb/15/bbc-supreme-court-middle-east-report

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