From: casework@ico.gsi.gov.uk <casework@ico.gsi.gov.

uk>
Subject: Your FOIA complaint about the BBC - detailed preliminary verdict[Ref. FS50370545]
To: xxxxxxxxxxxxxxxxxxxx
Date: Tuesday, 17 May, 2011, 16:40
17 May 2011

Case Reference Number FS50370545

Your FOIA complaint against the BBC

I am writing from the Information Commissioner’s Office concerning the

complaint that you have made about how the above public authority handled
your request for information dated 7 January 2011.

I apologise for the delays that you have experienced up to this point. This
email has a single purpose, to explain my preliminary verdict in this case and
why I have come to this verdict.

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.

(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 Act. The
Commissioner appreciates that you may have concerns about how the BBC’s
handles its editorial complaints, but the Commissioner cannot consider these
concerns. The Commissioner is also 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 five years that the legislation has
been in force. In summary, if the information is held in the process of creating
journalism, art or literature (including for editorial decisions and complaints)
then it falls outside the Act. This is the key issue in this case and I will discuss
the relevant authorities later.

(2) An appraisal of the correspondence

On 7 January 2011 you requested the following information:

“1. An estimate of the how many complaints/ accusations of bias the

BBC received from the public about the BBC's coverage of climate
change.

2. How many of the complaints received about climate change were

upheld by the BBC ie were accepted.

3. Brief details / a list of all the complaints upheld ie the details of the
complaint and the BBC's response. (Details of the person complaining
are not needed)”

On 19 January 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’. However, it did volunteer the
information for question (3) outside the Act.

On 23 January 2011 you referred this case to the Commissioner. You provided
some helpful arguments that I have summarised below:

1. You did not believe that public complaint data had been commissioned to
assess editorial decisions;

2. You believe that complaints are public submissions to the corporation and
are not held for the purposes of journalism as claimed;

3. You are asking for the number of complaints and accusations of bias,
rather than their content; and
 4. The complainant will be notified of the adjudication when a complaint is
upheld and the public should be too.

(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 that 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
said to be ‘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 over the five years since the Act came into force. As a result, the
High Court and the Court of Appeal have explained their view about when the
derogation will apply and their decisions are binding on the Commissioner. The
most recent decision was made in Sugar v British Broadcasting Corporation
and another [2010] EWCA Civ 715.

The High Court considered the scope of the derogation in the cases of the BBC
v Steven Sugar and the Information Commissioner [EW2349][1] and the BBC
v the Information Commissioner [EW2348].[2] 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:
‘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.

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 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.”

In essence, in this case, one is considering the following types of information:

1. Information about the number of editorial complaints received on a
specific matter;

2. Information about the number of editorial complaints received on

that matter; and

3. Brief details of the complaints upheld and the BBC’s response.

The Commissioner recognises that neither the High Court nor the Court of
Appeal cases specifically considered this sort of information.

However, in light of submissions made by the BBC in previous cases the

Commissioner recognises this information is derogated. The Commissioner’s
view is that information about editorial complaints falls within the third
element of that definition outlined above. This is because it constitutes a
review of the standards and quality of particular areas of output and
programme making. He has not been convinced that it is possible to
distinguish the number of complaints, from how the complaints are held from
themselves, because even a breakdown would provide information on what
influences the maintenance and enhancement of standards.

The Commissioner has recently promulgated a series of Decision Notices that

concerned information about editorial complaints information

They can be found at the following links:

FS50311208
http://www.ico.gov.uk/tools_and_resources/decision_notices/~/media/docume
nts/decisionnotices/2010/fs_50311208.ashx

FS50327965
http://www.ico.gov.uk/tools_and_resources/decision_notices/~/media/docume
nts/decisionnotices/2010/fs_50327965.ashx

The BBC has provided further arguments that explain the concern it has about
releasing information in respect to editorial complaints. The main points were
that:
 (1) It considers editorial complaints to be one mechanism in which is
supports its programme content, through continuous review of audience
reaction and to ensure that future production can be informed from their
results;

(2) It believed that the limitation of the Act was designed to protect
public broadcasters’ freedom of expression and that the maintenance of
its editorial independence is crucial to allow it to fulfil its function of
imparting information and explaining its ideas on all matters of public
interest;

(3) The release of information of this sort would threaten its

independence as it would erode the private space and this may lead to
individuals attempt to influence its output. It explained that it needed to
consider its past performance while considering how to create and
improve its programmes; and

(4) The release of the information about audience feedback would

damage independence because it would impede the programme maker’s
ability to weigh all feedback and come to journalistic judgment on future
content.

The Commissioner has been required to consider whether the information was
still held genuinely for the purposes of journalism on 7 January 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. It is also not material
whether the information has been disclosed to the complainants or the public
already, this is because the Commissioner is only considering whether it can be
disclosed under his legislation.

The BBC has presented detailed arguments in a previous case about why it
believes that the Commissioner should determine that the information remains
held genuinely for the purposes of journalism, despite the result of the
complaint being promulgated and the complaints process therefore being
exhausted. They are:

(1) The effect of editorial complaints transcends the time when they
are considered. The material continues to be held for editorial purposes,
may influence its editorial direction and inform future content;

(2) The outcome (and information relating to the complaint) plays a

significant role in helping inform the editorial decisions going forward,
which could involve a complaint or programme about similar or identical
 matters in the future. The information plays a significant role in the
content and connects to improving the quality of journalistic output; and

(4) Had information been archived, it should not be regarded as

dormant. This is because the information is held permanently in order to
inform journalistic content and it proved that 91% of requests for archive
material came from production divisions who created content.

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. He has placed the information that he
has obtained into those three criteria. He finds that:

(i) The information was created for the purpose of

managing the editorial complaints that were received. He is content
that there is a real connection between the results of those complaints
(particularly when upheld) and the impact they have on journalistic
content;

(ii) The Commissioner is satisfied that there is a direct

relationship between the information requested in respect to editorial
complaints and the content of the programme that the complaint is
about. In addition, the Commissioner is satisfied that the information
relating to the editorial complaint is still being held so the BBC can
use it to monitor and manage the quality and standards of is
journalistic output; and

(iii) He is satisfied that the information about the

Editorial complaints will continue to be used by those who monitor
and manage the quality and standards of its journalistic output.

I have therefore been satisfied that the BBC continued to genuinely hold the
information for the purposes of journalism at the date of the request. This is
because the results of editorial complaints have a material connection on the
decisions that are to made in the future by editors and in the Commissioner’s
view this relates to the enhancement of the standards and quality of
journalism which fell within the third paragraph of the Tribunal’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. It has no obligations in relation to timeliness because it is not
a public authority in respect to information that falls within the derogation.

I want to confirm that I am perfectly happy to Draft a Decision Notice in this

case. It is likely to be very similar to the recent Decision Notices on our
website that have been referred to above.

(3) Actions required

Please take one of the following options, as soon as possible, and in ten
working days in any event, so by 1 June 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 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. If you choose this option I would
appreciate that you clarify:

(i) Whether you are complaining only about the

requests (1) and (2) noted above (the numbers of complaints) or
whether you are dissatisfied about all three requests (as your
complaint form is not clear on this point); and

(ii) I would appreciate that you provide your

arguments about why you disagree with the preliminary verdict
 that is outlined above. This is not essential, but will ensure that the
Decision Notice takes any further arguments into account.

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 hope that you find this email is clear and helpful.

If you want to discuss this case further, you are welcome to telephone me on
01625 545 547.

You can reply to this email by replying to this one and leaving the subject line
unchanged (so that [Ref. FS50370545] remains).

I appreciate that the content of this email is likely to be disappointing to you.

However, I believe it is right to make the situation as clear as possible from the
outset.

Yours sincerely

David McNeil
Complaints Officer
The Information Commissioner’s Office

[1]BBC v Steven Sugar & The Information Commissioner [2009] EWHC 2349
(Admin)
[2] BBC v The Information Commissioner [2009] EWHC 2348 (Admin)

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