BBC impartiality on the Middle East: FoI case leans in favour of the PSB

The BBC appears to have won at least a partial victory in an appeal brought to prevent the release of an internal report under the Freedom of Information regime (1,2). In December 2005, the Information Commissioner ruled in favour of the BBC and concluded that the report need not be released. However, this decision was overturned (1,2) by the Information Tribunal (see here). The BBC has now gone to the High Court to prevent disclosure.

The report, written in 2004 by Malcolm Balen, reviewed the BBC’s coverage of the Middle East since 2000. It was always intended to be an internal document only. An independent study of the BBC’s coverage was also conducted – by a committee headed by Sir Quentin Thomas - and has since been published. This second report concluded that there was ‘little to suggest deliberate or systematic bias’, although it did list a series of ‘identifiable shortcomings’ (1,2). Members of the Jewish community, themselves upset by perceived bias against Israel in the BBC’s coverage, wished to assess whether the internal report was less sanguine (for a critique of the supposed impartiality of the BBC’s coverage in this area, and more generally, see the Biased BBC blog).

For those interested in the legal basis of the case, the starting point is to recognise that the BBC - and other PSBs - are subject to the Freedom of Information Act 2000 only 'in respect of information held for purposes other than those of journalism, art or literature' (Sch.1, Part VI). The BBC concluded that the Balen Report was held for purposes of journalism, and that it need not therefore be released. The Information Commissioner agreed. Clearly, the applicant - Mr Sugar - considered that it was more to do with setting the framework for journalism rather than journalism directly.

The current case has two prongs. First, there is a question over whether the Information Tribunal had any jurisdiction to hear the appeal from the decision of the Information Commissioner. This centres on whether the Commissioner's agreement with the BBC amounted to a 'decision' under section 50 of the Act (and was thereby subject to appeal to the Tribunal). It is on this point that Mr Justice Davis - in the High Court yesterday - indicated that he would find in favour of the BBC. There remains the second issue, however: whether Mr Sugar can persuade the court that it should consider whether the Information Commissioner acted illegally, irrationally or procedurally improperly in coming to the conclusion he reached. We still don't know what view the judge has taken on this side of the case.

Incidentally, the BBC Trust is currently undertaking two reviews on the impartiality question: (1) impartiality in a changing world, and (2) impartiality in BBC coverage of business news.