The BBC's FOIA Derogation and Internal Reviews

Alex Skene made this Freedom of Information request to British Broadcasting Corporation

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The request was successful.

Dear Sir or Madam,


Part VI of the FOIA Section 45 Code of Practice requires public authorities to have a process in place to ensure that applicants are able to ask a public authority for an internal review if wish to make a complaint about a public authority's response.

"38 Any written reply from the applicant (including one transmitted by electronic means) expressing dissatisfaction with an authority's response to a request for information should be treated as a complaint ..."

"39 The complaints procedure should provide a fair and thorough review of handling issues and of decisions taken pursuant to the Act ... It should enable a fresh decision to be taken on a reconsideration of all the factors relevant to the issue. Complaints procedures should be as clear and simple as possible. They should encourage a prompt determination of the complaint."


Please could you provide any recorded information you hold regarding the reasons the BBC does not provide an Internal Review / complaints procedure where it considers that a request under the FOIA falls within the category of "journalism, art or literature".

Yours faithfully,

Alex Skene

FOI Enquiries, British Broadcasting Corporation

Dear Mr Skene

Thank you for your request for information under the Freedom of
Information Act 2000, about the BBC's FOIA Derogation and Internal
Reviews, which was received on 16th December. We shall deal with your
request as promptly as possible and, at the latest, within 20 working
days. If you have any queries about your request please contact us at
the address below.

The reference number for your request is RFI20081443.

Kind regards.

The Information Policy and Compliance Team BBC Freedom of Information

Room 2252, BBC White City, 201 Wood Lane, London W12 7TS, UK

show quoted sections

FOI Enquiries, British Broadcasting Corporation

3 Attachments

Dear Mr Skene

Please find attached the response to your request for information,
reference RFI20081443

<<RFI20081443 - final response.pdf>>
<<RFI20081443 - 2005-04-18 - Minutes of Meeting.pdf>> <<RFI20081443 -
template changes.pdf>>

Yours sincerely
Rachel Hallett

BBC Information Policy and Compliance
Room 2252, White City
201 Wood Lane
London W12 7TS, UK

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Edwin Morris left an annotation ()

Where is the journalism within the BBC?
It seems to be a rehash of Gordon Browns Press releases.
BBC 24 Hr News seems to be almost entirely
a Government news channel.
Further what has Derogation got to do with the FOI?
It seems to be being used as a euphemism to allow the BBC to ignore the FOI!

Mr Ormerod left an annotation ()

If information isn't covered by the Act, then the Act doesn't apply, hence no internal review.

All you can do is refer the matter to the ICO for him to decide whether it is covered or not.

It's a bit like complaining that disclosure of your dead aunt's personal data is a breach of the Data Protection Act. It's not, cos the DPA only applies to living individuals, etc. etc.

Alex Skene left an annotation ()

The background for my request is related to the backlog of FOI cases at the Information Commissioner as at June 2008:

The authority with the largest number of outstanding complaints was the BBC (74), and most are related to s.1, ie the derogation. In addition, the ICO upholds nearly all derogation complaints. It seems that a significant number of cases could be resolved much earlier on, and at the BBC's expense (rather than by the overworked & underfunded ICO) if the BBC offered an internal review of their decision.

The ICO say you should exhaust a public authority's complaints procedure before complaining to them, and to make a complaint if an authority fails to provide the information you're looking for - "Not held" is the answer the BBC give using the derogation, and this is the result of a case-by-case interpretation of the derogation - there's no real reason I can see why you can't challenge this interpretation & offer them a chance to reconsider.

It's definitely not as clear-cut as in your DPA example. A more comparable example from that Act is what falls into the "political opinions" category (s.2 Sensitive personal data).


Ganesh Sittampalam left an annotation ()

I doubt internal reviews would actually produce any other result; the BBC seems quite firmly wedded to their belief that any tenuous connection to journalism is enough to engage the derogation. In one large class of cases - cost information associated with programme production - the Information Tribunal have found against the BBC, but they are appealing to the High Court. Hopefully once they lose there (assuming they do), it will clear out a lot of cases at once.

(sorry the link is broken but I can't persuade the text form not to break it across multiple lines)

Mr Ormerod left an annotation ()

I know it's not as clear cut as the DPA example - which is why I said it's a "bit" like that.

Whilst it's based on BBC opinion (and an often (usually?) flawed opinion), the fact remains that they do not believe the Act applies. It might not seem right, but it's the way it is.

I have an outstanding case with the ICO, appealing against such a decision by the BBC ("outside the scope of the Act"). I submitted my appeal in May 2007. I found out in December 2008 that it has finally been assigned a caseworker at the ICO...

Ganesh Sittampalam left an annotation ()

At least part of the basis of this advice has now been invalidated by the recent House of Lords decision in the Sugar vs BBC case re the Balen report - the ICO stated in the attached document that the complainaint could apply for judicial review if the ICO agreed about the derogation, but the HoL ruling means that the standard ICO Decision Notice/Information Tribunal process applies now.

Since there is now a general principle that the application of the derogation is to be treated like any other part of FOI until it is confirmed to be valid, I wonder if the BBC should now be expected to offer internal reviews in this area.