Appeal againt BBC - RFI20110526

Dear Z Hussain

Thank you for your email of 1 June 2011. Although your email is entitled 'Freedom of Information request', it is not a request for recorded information held by the Information Commissioner's Office. I have therefore forwarded your email to our casework teams, who are best placed to answer your enquiries/complaint and will respond to you as soon as possible.

Thank you

Yours sincerely

Helen Ward
Lead Internal Compliance Officer

Helen Ward Lead Internal Compliance Officer

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

T. 01625 545 557 F. 01625 524 510 www.ico.gov.uk

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30 June 2011

Case Reference Number FS50394881

Dear Z. Hussain

Your information request to

Thank you for your correspondence dated 2 June in which you make a
complaint about the BBCÂ’s decision not to release the information you
requested regarding empty spaces on audience type shows. 

Your case has been allocated to one of our case resolution teams who will
contact you as soon as possible to explain how your complaint will be
progressed. 

The Information CommissionerÂ’s Office is an independent public body
set up to promote public access to official information. We will rule on
eligible complaints from people who are unhappy with the way public
authorities have handled requests for information under the Freedom of
Information Act 2000.

If you need to contact us about any aspect of your complaint please
contact our Freedom of Information Helpline on 0303 123 1113, being sure
to quote the reference number at the top of this letter.

 

Yours sincerely,

Sent on behalf of

Faye Spencer and Pam Clements

Group Managers – Complaints Resolution

Information CommissionerÂ’s Office

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

References

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25 August 2011

Case Reference Number FS50394881

Dear Mr Hussain

Your FOIA complaint against the BBC

I am writing from the Information CommissionerÂ’s Office about the
complaint that you have made about how the above public authority handled
your request for information dated 28 April 2011.

After considering the case I am now in a position to outline and explain
my initial verdict.

I am aware that my colleague David McNeil recently also provided a verdict
to you with regards to a BBC application of the derogation (Ref.
FS50387766). In his verdict he explained some key principles of the
operation of the Act. I will not repeat this, but after providing a
summary of the correspondence I will explain my initial verdict applying
the same case law cited by my colleague. I will then present action points
and timescales to enable your case to proceed in a manner that you choose.

(1) An appraisal of the correspondence

On 28 April 2011 you requested the following information:

“Do you have a policy on how empty spaces are filled in live audience
type shows such as Question Time, The Big Questions etc.?

When such empty spaces occur, are they filled by volunteers?”

On 01 June 2011 the BBC issued a response. It explained that it did not
believe that the information was embraced by the Act because it was held
for the purposes of ‘art, journalism or literature’.

It appears that on the 02 June 2011 you referred this case to the
Commissioner. You provided some helpful arguments:

“I think that if the BBC turns down a request for information, it
should explicitly state the reasons why. The catch-all of 'journalism, art
or literature' is simply too wide-ranging.”

The BBC appears to avoid answering questions by invoking the 'journalism,
art or literature' catch-all.”

You went on to make a request to the Commissioner:

“Could you please ask the BBC to at least answer the sub-question
which relates to which of the three categories my question falls into as
that will provide some clarity to their obfuscation?”

(3) My preliminary verdict in this case

After carefully considering both arguments I can confirm that my
preliminary verdict is that the BBC was correct that the information was
excluded from the Act under the journalism derogation.

As you will now know, the BBC is only covered by the Act if the
information that has been requested is held for “purposes other than
those of journalism, art or literature”. The BBC is not obliged to
consider this derogated information under the Act.

This provision has created considerable litigation between the
Commissioner and the BBC. The High Court and the Court of Appeal have
explained their view about when the derogation will apply and the
Commissioner is bound by their decisions.

The High Court considered the scope of the derogation in the cases of the
BBC v Steven Sugar and the Information Commissioner [EW2349] and the BBC v
the Information Commissioner [EW2348]. In both decisions Mr Justice Irwin
stated:

“My conclusion is that the words in the Schedule mean the BBC has no
obligation to disclose information which they hold to any significant
extent for the purposes of journalism, art or literature, whether or not
the information is also held for other purposes. The words do not mean
that the information is disclosable if it is held for purposes distinct
from journalism, art or literature, whilst it is also held to any
significant extent for those purposes. If the information is held for
mixed purposes, including to any significant extent the purposes listed in
the Schedule or one of them, then the information is not disclosable.”
(para 65 EA2349 and para 73 EW2348).

This issue was appealed to the Court of Appeal in the case Sugar v British
Broadcasting Corporation and another [2010] EWCA Civ 715. The Court of
Appeal rejected the appeal. The leading judgment was made by Lord
Neuberger of Abbotsbury MR who stated that:

‘In my view, the BBC's interpretation is to be preferred: once it is
established that the information sought is held by the BBC for the
purposes of journalism, it is effectively exempt from production under
FOIA, even if the information is also held by the BBC for other
purposes.Â’ (para 44),.provided there is a genuine journalistic purpose
for which the information is held, it should not be subject to FOIA (para
46)”

The Commissioner interprets the phrase “to any significant
extent”, when taken in the context of the judgments as a whole, to
mean that where the requested information is held to a more than trivial
(or insignificant) extent for journalistic, artistic or literary purposes
the BBC will not be obliged to comply with Parts I to V of the Act. This
is the case even if the information is also held for other purposes.

Thus, provided there is a relationship between the information and one of
the purposes listed in Schedule 1, then the information is derogated. The
information relevant to the request need not be journalistic, artistic or
literary material itself.

All the BBC must evidence is that the information is being used in order
to create output, in performing, in this case, an activity covered by
journalism. If it is, then the information falls outside the scope of the
legislation.

The Court of Appeal has also helpfully accepted a definition of what
constitutes journalism that was introduced in the Information Tribunal.
This definition was worded as follows:

“107. The first is the collecting or gathering, writing and verifying
of materials for publication.

108. The second is editorial. This involves the exercise of judgement on
issues such as:
* the selection, prioritisation and timing of matters for broadcast or
publication,
* the analysis of, and review of individual programmes,
* the provision of context and background to such programmes.

109. The third element is the maintenance and enhancement of the standards
and quality of journalism (particularly with respect to accuracy, balance
and completeness). This may involve the training and development of
individual journalists, the mentoring of less experienced journalists by
more experienced colleagues, professional supervision and guidance, and
reviews of the standards and quality of particular areas of programme
making.”

In essence, in this case, one is considering editorial policies concerning
how the audience seating for journalistic programmes such as Question Time
and The Big Questions are filled and by whom.

The Commissioner recognises that neither the High Court nor the Court of
Appeal cases specifically considered information about audience seating
procedures. Nevertheless, the Commissioner considers the comments made by
Mr Justice Irwin regarding the need for a relationship between the
requested information and the derogated purposes. The Commissioner
understands that the information would be held to assist those involved in
the creation of output for the BBC – in this case, for example, the
audience that Question Time et cetera chooses to allocate. In view of the
fact that the requested information is likely to be used to inform
allocation decisions about future programmes I can establish a
relationship between it and the purposes listed in Schedule 1.

The Commissioner considers the second element of journalism within the
definition above - the editorial process - as relevant in this case.
Decisions regarding audience seating policies and the use of volunteers
would be editorial choices reflecting the output objectives of such
productions.

It is necessary to consider whether information was still held genuinely
for the purposes of journalism on 28 April 2011. It is not material
whether the information is also held for other purposes too, providing
that it is held genuinely for the purposes of journalism.

The Information Tribunal has also explained that the status of information
should be judged against the following three criteria:

§ The purpose for which the information was created;

§ The relationship between the information and the programmes content
which covers all types of output that the BBC produces; and

§ The users of the information.

The Commissioner has carefully considered the arguments of both sides to
consider the status of the information.

The information that has been requested relates to audience seating
policies and seeks to disclose the procedures for filling empty seats.
Programmes with participating audiences are expected in BBC journalistic
output and inevitably require editors to establish seating polices and
procedures. Therefore, I am satisfied that the BBC genuinely held the
information for the purposes of journalism at the date of the request.
This is because the information will be used in the decision making
process of editors for the production of future programming output; the
information will inform seating allocation decisions in future programmes.
This relates to the enhancement of the standards and quality of journalism
which fell within the third paragraph of the TribunalÂ’s definition of
what ‘journalism’ means.

In view of the above, my preliminary view is that the information that you
have requested is held to a genuine extent for journalistic purposes and
falls outside the Act. The BBC has no obligations in relation to
timeliness because it is not a public authority in respect to information
that falls within the derogation.

You perhaps had already expected this finding after receiving David
McNeilÂ’s verdict in relation to case FS50387766. However, I appreciate
that this preliminary verdict is still likely to be disappointing for you.

(4) Actions required

Please take one of the following options, as soon as possible, and in ten
working days in any event, so by 08 September 2011:

1. It may be the case that you are prepared to reluctantly withdraw
this complaint at this point given the information above. This does not
mean that you are satisfied with the situation, but that you understand
that any Decision Notice you will receive will be highly likely to uphold
the position of the BBC. You would not then be able to appeal this case to
the First Tier Tribunal (Information Rights).

2. The alternative is that you want to proceed to a Decision Notice. I
am happy to draft this notice, but as explained above it is highly likely
to uphold the position of the BBC. Unfortunately due to our internal
approval procedure it is likely to take some time for an appropriate
Decision Notice to be issued and I did not want to keep you waiting any
longer than necessary. You would be entitled to appeal the Decision Notice
to the First Tier Tribunal (Information Rights) should you want to. I
would require your arguments about why you disagree with this preliminary
verdict should you wish me to proceed with the Decision Notice.

It is unfortunate that the BBC did not respond within the time scale of
the Act. I also understand your concern over the corporation not
specifying which of the derogations it was relying on within the bracket
of ‘journalism, art or literature’. I am happy to outline these
concerns to the corporation regardless of the decision you make from the
above choices. I hope that this might help address some of your concerns
over the derogation and how it was applied on this occasion by the BBC.

You can contact me by replying to this email and leaving the subject line
unchanged (so that [Ref. FS50394881] remains). If you want to discuss this
case further, you are very welcome to call me on 01625 545 598.

If I do not hear from you by then, I will proceed on the basis that you
have chosen option one and that you are prepared to withdraw this case.

I regret that this letter is not the outcome that you had hoped for, Mr
Hussain.

Kind regards,

Calum Liddle

Case Officer

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk