From the Information Commissioner’s Office 11 June 2012
FULL ARTICLE HERE
Case Reference Number FS50447991
Your FOIA complaint against the BBC
I am writing from the Information Commissioner’s Office about the complaint that you have made about how the above public authority handled your request for information dated 04 April 2012.
This letter has a single purpose; to explain my preliminary verdict in this case.
In order to achieve this purpose, it will have four parts. The first part will explain some key principles of the legislation. The second will provide an appraisal of the correspondence. I will then explain my preliminary verdict and why I have come to that verdict. I will then present action points and timescales to enable your case to proceed in a manner that you choose.
(1) Some key principles about the operation of the Act
I believe that there are two key points that should be made at this point in my investigation. They are:
1. The Commissioner can only consider the operation of the Act
The Commissioner only has the power to consider the operation of the Freedom of Information Act 2000 (the “FOIA”). The Commissioner appreciates that you have concerns regarding any BBC agreement with the United Grand Lodge of England with regards to the use of their premises for the corporation’s drama ‘SPOOKS’, but the Commissioner is unable to compel the public authority to provide information outside its obligations under the Act.
2. The BBC is only a public authority under the Act in respect to some of the information that it holds
The BBC is an unusual public authority because Parliament decided that it should not be required to provide information that was held for the purposes of ‘art, journalism or literature’. The Commissioner has had considerable litigation about what this means with the BBC over the years that the legislation has been in force. In summary, if the information is held in the process of creating journalism, art or literature then it falls outside the Act. This is the key issue in this case and I will discuss the relevant authorities later.
(2) Summary of the correspondence
On 04 April 2012 you requested information in the following terms:
“1. All relevant correspondence that dealt with the BBC contract and use of the United Grand Lodge of England when those premises were used for the BBC drama 'SPOOKS'.
2. Please provide if licence payers money was paid to UGLE for permission to use the building as the backdrop to the drama?
3. Please provide the names of all senior staff that negotiated with UGLE for the use of their building?
4. The details of any meetings between the BBC and UGLE members?”
On 08 May 2012 the BBC issued a response. The BBC 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’.
(3) My preliminary verdict in this case
I can confirm that my preliminary verdict is that the BBC was correct that the information was excluded from the Act.
I want to use this opportunity to explain why I believe this is so.
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 information that falls within the purposes of journalism, art and literature is derogated; this is because the BBC has no obligations to consider it under the Act.
This provision has created considerable litigation between the Commissioner and the BBC. As a result, the High Court, the Court of Appeal and the Supreme Court have explained their view about when the derogation will apply and their decisions are binding on the Commissioner.
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  EWCA Civ 715. The Court of Appeal rejected the appeal. The leading judgment was made by Lord Neuberger of Abbotsbury MR who stated that:
“On this issue, again I am in agreement with Irwin J. 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.” (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.
This year at the Supreme Court in Sugar (Deceased) (Represented by Fiona Paveley) v BBC, UKSC 4 on appeal from  EWCA Civ 715, the appeal was dismissed 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 FOIA.
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 one of the activities covered by journalism, art or literature. 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.”
The Commissioner has adopted a similar approach with regard to art, one of the other two limbs of the BBC derogation. In his view, art is comprised of the same three elements, that is:
· The preparation and creation of the artistic output.
· The editorial process.
· The maintenance and enhancement of the standards and quality of artistic output.
In essence, in this case, one is considering any BBC agreement with the United Grand Lodge of England with regards to the use of their premises for the corporation’s drama ‘SPOOKS’, besides other information, namely, the details of meetings and the names of staff involved in any negotiation process.
I find this information relates to the Commissioner’s interpretation of art. It is well established artistic practice for editors - in preparation for recording - to establish film locations. This is a process which involves negotiation and the conclusion of a contract where necessary. The costs too, therefore, fall well within this artistic remit; securing the locations required for artistic purposes in the production of broadcast output.
It follows then that the Commissioner also considers the second element of art to fall within the definition above - the editorial process – to be relevant in this instance. Decisions regarding programme content and production output reflect editorial choices taken in a creative environment. Editors must be able to make artistic judgments independently. Who the BBC wishes to negotiate with in order to secure locations is a matter for editors in their exercising of judgement and their decision making process in the realms of creativity and art.
For this reason and for clarity, I will take this opportunity to explain that the BBC is correct to cite the European Convention on Human Rights (ECHR). The derogation protects freedom of expression and the rights of the media under the ECHR. The Commissioner finds in this case that the disclosure of any of the requested details would impinge the BBC’s editorial independence. This is because editorial decisions could be influenced or compromised and artistic production could be swayed by those outside of the creative environment. The BBC must have editors who can conduct their artistic skills freely with any and all parties as they independently see fit to do so - free from external interference. Disclosure on this occasion would threaten such a right and impinge the free flow of creativity and artistic broadcast output.
The Commissioner also finds that the requested information is held for purposes that fall within the third definition of art. The information that pertains to your request will be used as part of the BBC’s review of the standards and quality of programming output, and might influence or still play a part in any future programming. Future creative decisions will refer to information gathered from this instance; location viability, post-production quality and value for money are just some examples. In future production, editorial decisions will be taken with a view to maintain output quality, particularly where this might affect the standards and quality of broadcast output.
It is necessary to consider whether information was still held genuinely for the purposes of the derogation on 04 April 2012. It is not material whether the information is also held for other purposes too, providing that it is held genuinely for the purposes of ‘art, journalism or literature’.
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.
On this occasion I find that the information was intimately involved in the broadcasting output of the corporation at the time of your request and remains so, therefore, after considering all the circumstances in this case the Commissioner is satisfied that the BBC genuinely holds the information for the purposes of the derogation.
The Commissioner is unable accept public interest arguments as a means to justify the disclosure of derogated information.
In view of the above, my preliminary view is that the information, despite the arguments that you have presented to the Commissioner, 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.
The Commissioner has no statutory powers as the regulator of the Information Acts to compel disclosure.
I want to confirm that I am perfectly happy to draft a Decision Notice in this case, however, it is very likely to follow the lines of this initial verdict.
(4) Actions required
Please take one of the following options, as soon as possible, and in ten working days in any event, so by 25 June 2012:
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 and find against you. 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 appreciate if you choose this option to provide your arguments about why you disagree with the preliminary verdict that is outlined above.
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.
If you want to discuss this case further, you are welcome to call me directly using the number below or you can reply to this email leaving the subject line unchanged (so that [Ref. FS50447991] remains). I am happy to discuss this verdict with you and perhaps go over anything that you wish me to clarify.
I appreciate that the content of this letter is likely to be disappointing to you. However, I believe it is right to make the situation as clear as possible from the outset.
I hope that you find this email clear and helpful.
Calum Liddle Case Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF
T. 01625 545598 F. 01625 524510 www.ico.gov.uk