Observations on the BBC
As you would expect, Britain's biggest journalistic institution, the BBC, has made much use of the Freedom of Information Act. Its website lists 69 stories that it says it broke with the act's help. Yet it is about to fight an expensive high court battle to restrict its own exposure to the FoIA.
The case, opening on 27 March, revolves round an internal report on the fairness of the BBC's Middle East journalism. It was prepared by Malcolm Balen, an in-house editorial adviser, after coverage was criticised as anti-Israeli. The BBC is subject to the FoIA like most public bodies, and Steven Sugar, a London solicitor, applied for release of the Balen report.
The corporation refused. Sugar appealed. At a hearing in September last year, the Information Tribunal ruled in his favour. The BBC then appealed to the high court against this ruling. By the time this month's hearing is over, the dispute will probably have cost licence fee-payers at least £200,000. Yet the corporation's case is far from impressive.
The act says public broadcasters need not disclose material held for the purposes of "journalism, art or literature". According to the BBC, this exemption covers the Balen report, as the report's purpose was "to inform future output". In fact, the exemption was intended largely to protect journalists' sources and to prevent people they were investigating from raiding their notebooks.
The Information Tribunal judged the Balen report to be part of the corporation's strategic, rather than its journalistic, activities. Yet, whatever the legal position, why is the BBC so intent on concealment? The document in question is clearly of public interest, and the BBC's very purpose is the dissemination of information.
An obvious inference is that Balen uncovered shortcomings so serious that the BBC fears their exposure. None the less, it insists that its concerns lie elsewhere. It says the exemption on which it is relying is necessary "to protect journalistic, artistic and literary integrity" by keeping programme-makers "free from the interference and scrutiny of the public", and maintains that it must fight the current case to clarify the scope of the exemption.
A BBC spokesman also told the New Statesman: "If the application of the act changes, it could result in a sudden increase in Freedom of Information requests, requiring significant additional staffing and therefore a further burden on the licence fee."
Unfortunately, some may find this posture more disturbing than a mere attempt to avoid embarrassment. Should a public institution really be arguing that not only its journalists, but even those adjudicating on their behaviour, must be shielded from public scrutiny?
How can this proposition be squared with the BBC's promise, during the recent charter review process, that it would henceforth be "open and accountable"?
The point about resources, from an organisation that has just managed to find £18m to pay for Jonathan Ross, seems disingenuous. It offers a dispiriting echo of the government's recent announcement that the FoIA itself will have to be watered down because it is, supposedly, costing too much.
The corporation's real objective may seem baffling, but an apparent clue can occasionally be stumbled upon. The BBC offers advice to those thinking of making requests to it for information. This advice highlights the exemption for journalism, and makes the claim, absent from the act itself, that the exemption embraces not just journalism, art and literature, but also "information that supports and is closely associated with" these activities.
This formulation could cover a great deal more than the Balen report. Indeed, it would bury much of the most potentially interesting data that the corporation possesses. It is hard to avoid the conclusion that the BBC is simply out to cloak its activities in as much secrecy as possible, by abusing such loopholes as it can find in the law.
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