By email to [FOI #110280 email]
30 March 2012
Dear Mr Sloan Freedom of Information request RFI20120308
Thank you for your request to the BBC of 20th March 2012 seeking the following information,
under the Freedom of Information Act 2000 (“the Act”), in relation to the derogation to the Act
under Part VI of Schedule 1:
Under the Freedom of Information Act 2000 I seek from the BBC the content of any documents,
manuals, guidance notes etc. which the BBC use to determine whether information is covered or not by the
Act or not.
It may be helpful to start by explaining how the BBC understands the application of the wording in
Part VI of Schedule 1 to the Act.1
Firstly, the Act itself is our primary source. Part VI of Schedule 1 to FOIA provides that
information held by the BBC and the other public service broadcasters is only covered by the Act
if it is held for ‘purposes other
than those of journalism, art or literature”.
Secondly, the BBC’s understanding of the scope of the derogation has been informed by numerous
cases, not all involving the BBC, that have been considered by the Information Commissioner,
Information Tribunal, High Court, Court of Appeal and Supreme Court as well as the European
Court of Human Rights.
One of the main policy drivers behind the limited application of FOIA to the public service
broadcasters was to protect freedom of expression and the rights of the media under Article 10
European Convention on Human Rights.
1 “The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature”
The Information Commissioner has affirmed this, stating that:
“…the ultimate purpose of the derogation is to protect journalistic, artistic and literary
integrity by carving out a creative and journalistic space for programme makers free from
the interference and scrutiny of the public”.2
You may find decision notices of the Information Commissioner at the following URL: http://www.ico.gov.uk/tools_and_resources/decision_notices.aspx
- using the search function, if
you select BBC as the ‘Authority’ and FOI 1 as the ‘Section’ you will find a number of other
relevant decision notices.
In summary, the BBC considers the derogation protects the journalistic, artistic and literary
integrity of the BBC by securing a creative and journalistic space for programme-makers to
produce material for broadcast free from interference by those who would seek to influence our
output. Additionally, as also recognised by the Court of Appeal, it allows for a “level playing field”
between the Public Service Broadcasters caught by the Act (BBC, Channel 4, S4C, GMS) and their
commercial competitors. In practical terms, the BBC has interpreted this to mean that we are not
required to supply information held for the purposes of creating the BBC’s output or information
that supports and is closely associated with these creative activities.
I have attached a document held by the Information Policy and Compliance team which sets out
for reference the ICO position on whether particular types of information are held under the Act,
although please note this is the position as it was in 2010, and it may have been superseded by
If you are not satisfied that we have complied with the Act in responding to your request, you
have the right to an internal review by a BBC senior manager or legal adviser. Please contact us at
the address above, explaining what you would like us to review and including your reference
number. If you are not satisfied with the internal review, you can appeal to the Information
Commissioner. The contact details are: Information Commissioner's Office, Wycliffe House,
Water Lane, Wilmslow, Cheshire, SK9 5AF, telephone 01625 545 700 or see http://www.ico.gov.uk/
Rachel Hallett BBC Information Policy and Compliance
Freedom of Information
From January 2005 the Freedom of Information (FOI) Act 2000 gives a general right of access to
all types of recorded information held by public authorities. The Act also sets out exemptions
from that right and places a number of obligations on public authorities. The term “public
authority” is defined in the Act; it includes all public bodies and government departments in the
UK. The BBC, Channel 4 and S4C are the only broadcasters covered by the Act. Application to the BBC
The BBC has a long tradition of making information available and accessible. It seeks to be open
and accountable and already provides the public with a great deal of information about its
activities. BBC Information operates 24 hours a day, seven days a week handling telephone and
written comments and queries, and the BBC’s website bbc.co.uk provides an extensive online
It is important to bear this in mind when considering the Freedom of Information Act and how it
applies to the BBC. The Act does not apply to the BBC in the way it does to most public
authorities in one significant respect. It recognises the different position of the BBC (as well as
Channel 4 and S4C) by saying that it covers information “held for purposes other than those of
journalism, art or literature”. This means the Act does not apply to information held for the
purposes of creating the BBC’s output (TV, radio, online etc), or information that supports and is
closely associated with these creative activities.
A great deal of information within this category is currently available from the BBC and will
continue to be so. If this is the type of information you are looking for, you can check whether it is
available on the BBC’s website bbc.co.uk or contact BBC Information.
The Act does apply to all of the other information we hold about the management and running of
the BBC. The BBC
The BBC's aim is to enrich people's lives with great programmes and services that inform, educate
and entertain. It broadcasts radio and television programmes on analogue and digital services in
the UK. It delivers interactive services across the web, television and mobile devices. The BBC's
online service is Europe's most widely visited content site. Across the world, the BBC broadcasts
radio programmes in 32 languages on the BBC World Service and the 24 hour television service,
BBC World News.
The BBC's remit as a public service broadcaster is defined in the BBC Charter and Agreement. It
is the responsibility of the BBC Trust (the sovereign body within the BBC) to ensure that the
organisation delivers against this remit by setting key objectives, approving strategy and policy, and
monitoring and assessing performance. The Trustees also safeguard the BBC's independence and
ensure the Corporation is accountable to its audiences and to Parliament.
Day-to-day operations are run by the Director-General and his senior management team, the
Executive Board. All BBC output in the UK is funded by an annual Licence Fee. This is determined
and regularly reviewed by Parliament. Each year, the BBC publishes an Annual Report & Accounts,
and reports to Parliament on how it has delivered against its public service remit.