BBC FOI exemption ‘for the purposes of art, journalism or literature’

27 June 2018

Case Reference Number FS50754140

Freedom of Information Act 2000 (FOIA)
Your FOIA request to the BBC dated 24 May 2018 about radio output and written transcripts of the spoken content.

BBC reference RFI2018037

I am writing from the Information Commissioner’s Office to explain the Commissioner’s preliminary conclusion with respect to your complaint. The Commissioner is satisfied that the BBC has correctly handled your request for information under FOIA.

Summary of the correspondence

On 24 May 2018 you sent the following information request to the BBC:

“I understand most of your radio output has written transcripts of the spoken content, and if not this should be easily created using recognition software such as https://trint.com

“Why are these not routinely published alongside the other program information? If not FOI it must be an obligation to enable accessibility for listeners who lack the necessary hearing acuity.”

On 8 June 2018 the BBC responded to your request. The BBC explained that it did not believe that the information was caught by FOIA because it was held for the purposes of ‘art, journalism or literature’.

On 11 June 2018 you complained to the ICO about this response. You argued how it is compatible with BBC accessibility policy.

Some key principles about the operation of FOIA

Although the BBC is listed as a public authority in the FOIA it applies to the BBC only to a limited extent.

The BBC is a public authority for the purposes of the FOIA — “in respect of information held for purposes other than those of journalism, art or literature.”

This is known as the Schedule 1 derogation.

This means that information held for the purposes of journalism, art or literature is not covered by the FOIA but is derogated.

The Commissioner appreciates that you have concerns over accessibility of written transcripts of radio output but the Commissioner can only consider concerns within the scope of the FOIA. The operation of the derogation is explained in more detail below.

How the derogation works

Since the FOIA came into force, the issue on derogation has created considerable litigation about what this means. The High Court, the Court of Appeal and the Supreme Court have explained their views about when the derogation will apply and their decisions are binding on the Commissioner. In summary, if the information is held and relates to ‘output’ then it falls outside FOIA.

On 15 February 2012, the Supreme Court in Sugar (Deceased) v British Broadcasting Corporation and another [2012] UKSC 4 gave a clear definition of what the phrase ‘journalism, art or literature’ means in FOIA and what types of information it will cover; the Supreme Court found that, “…the composite expression ‘journalism, art or literature’ seems to be intended to cover the whole of the BBC’s output in its mission (under article 5 of its Royal Charter) to inform, educate and entertain the public. On that comprehensive approach the purposes of journalism, art or literature would be, quite simply, the purposes of the BBC’s entire output to the public.” (Lord Walker at para 70).

In relation to journalism the Supreme Court accepted the Information Tribunal’s definition of journalism as comprising three elements:

• The first is the collecting or gathering, writing and verifying of materials for publication.
• 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; and
* the provision of context and background to such programmes.

• 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.”

Also the Supreme Court found (in a 4:1 majority) that if the information is held by the BBC to any significant degree for the relevant purposes (i.e. journalism, art, literature) it is exempt from production under FOIA, even if the information is also held for other purposes.

Therefore provided there is a relationship between the information and one of the purposes listed in Part VI of Schedule 1 — which are to be read to mean ‘output’ — then the information is derogated.

The information relevant to the request need not be journalistic, artistic or literary material itself. All that must be evidenced is that the information requested has a relationship with the BBC’s output.

Is there a relationship between the information requested and ‘output’?

Your request for the radio output transcript information is well within the expected remit of the BBC for the purposes of creating content and producing output. This in turn closely relates to the editorial decision making process and resource allocation.

In light of submissions made by the BBC in previous cases the Commissioner understands that the particular information sought is used by the BBC as part of the process in allocating a fixed resource to produce its complement of broadcasted output.

The Commissioner has accepted on a number of occasions (such as in case reference FS50314106 that the BBC has a fixed resource in the Licence Fee and resource allocation goes right to the heart of creative decision making.

It is the Commissioner’s view that information about the radio transcript information has a relationship to its creative output. The Commissioner is satisfied that such decisions form part of the editorial process.

Therefore, the information is held for the purposes of the derogation. It is inextricably linked to the BBC’s output and as a result I am satisfied that in this case the Commissioner has no jurisdiction in this matter and therefore no statutory power to order disclosure.

You may wish to read further decision notices regarding the application of the derogation at the link below by selecting the BBC under the ‘Authority’ tab:

https://icosearch.ico.org.uk/s/search.html?collection=ico-meta&profile=decisions&query

The Commissioner’s preliminary conclusion in this case

As a preliminary conclusion, the Commissioner is satisfied that the requested information is derogated and therefore the BBC is not obliged to comply with Parts I to V of the FOIA with respect to this request.

Progression of this case and actions required

Please consider the following options and respond as soon as possible or within ten working days by 11 July 2018.

1. It may be the case that you are prepared to 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. Should you agree to withdraw your complaint without a decision notice 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 and as explained above it is highly likely to uphold the position of the BBC and find against you. Both parties will however have a right of appeal at the First-tier Tribunal (Information Rights) where there are grounds to do so. If you require a decision notice I would ask you to provide your arguments about why you disagree with the preliminary view that is outlined above and encourage you to read through the material that I have referenced.

If I do not hear from you, I will proceed on the basis that you are prepared to withdraw this case.

Thank you for your co-operation in this matter.

Yours sincerely

Anjum Iqbal (Mr)
Case Officer
Information Commissioner’s Office

For information about what we do with personal data see our privacy notice

[1] The judgment can be found here (please be aware that the dissenting judgment comes first and is not the law) http://www.supremecourt.gov.uk/docs/UKSC_2010_0145_Judgment.pdf
The official summary of the same can be found here:
http://www.supremecourt.gov.uk/docs/UKSC_2010_0145_ps_v2.pdf

My response the ICO decision:

Dear Mr Iqbal

Thank you for your detailed explanation about why you support the position routinely adopted by the BBC to deny access to information pertaining to its output. I wonder if you could explain how you or the “Commissioner understands that the particular information sought is used by the BBC as part of the process in allocating a fixed resource to produce its complement of broadcasted output”, and how “information about the radio transcript information has a relationship to its creative output”. Not withstanding your replies to these questions, I have set out 3 reasons why I believe your decision should be reviewed in this case.

1.

Your decision is based an appeal about whether the Balen Report commissioned by the BBC in relation to its Middle Eastern coverage and completed in July 2004 constituted “information held for purposes other than those of journalism, art or literature” (within Part VI of Schedule 1 to the Freedom of Information Act 2000). As this case was concerned with information that was being withheld from the public domain I fail to see how it applies to my request where the information requested is already in the public domain albeit in a different format, and is information that is expressly produced for the purpose of public broadcast.

In the Judgement Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation and another (Respondents), LORD BROWN indicated the case revolved around interpretation

of a series of decisions by the ECHR about article 10(2) of the Human Rights Act, but all of these were concerned with information withheld from the public domain for differing reasons:

88. Before this Court Mr Eicke QC has vigorously returned to article 10 and advances what is essentially a two stage argument. First, he contends, in reliance principally upon a trilogy of Strasbourg decisions — Matky v Czech Republic (Application No 19101/03) (unreported) 10 July 2006, (Matky), Tarsasag A Szabadsagjogokert v Hungary (2009) 53 EHRR 130 (14 April 2009) (Tarsasag), and Kenedi v Hungary (Application No 31475/05) (unreported) 26 August 2009 (Kenedi) — that the ECtHR has recently moved towards the recognition of a right of access to information and that in the particular circumstances of the present case an interpretation of the Act which withholds from disclosure a document such as the Report interferes with the right of access to information protected by article 10(1). Secondly he submits that such interference is not necessary in a democratic society so as to be justified under article 10(2). He not only disputes that the release of the Report would have a chilling effect on freedom of expression but submits that only the need to protect journalistic sources — or perhaps, indeed, more narrowly still, the need to protect sources who might otherwise be deterred from assisting journalists — would constitute an overriding requirement of the public interest sufficient to justify this interference with the citizen’s article 10(1) right of access to information.
89. Before turning to the trilogy of decisions upon which the appellant mainly relies it is helpful first to note the well-established body of Strasbourg jurisprudence which is recognised to define, generally speaking, the nature and extent of the right under article 10(1) “to receive . . . information and ideas without interference by public authority”. It is sufficient for present purposes to cite a short passage from the unanimous Grand Chamber decision in Roche v United Kingdom (2005) 42 EHRR 599 at para 172:
“The Court reiterates its conclusion in Leander v Sweden (1987) 9 EHRR 433 and in Gaskin v United Kingdom (1989) 12 EHRR 36 and, more recently, confirmed in Guerra v Italy (1998) 26 EHRR 357, that the freedom to receive information ‘prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him’ and that that freedom ‘cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to . . . disseminate information of its own motion’.”
It is right to observe, before moving on, that the circumstances of those particular cases were that the applicants were attempting to obtain information respectively about their being regarded as a security risk (Leander), about their childhood (Gaskin), about a chemical factory (Guerra) and about long-past Porton Down tests in which they had participated (Roche).

2.

With regard to establishing whether information will fall within the derogation, Lord Brown stated at paragraph 106:

As for the point at which information will cease to be held to any significant degree for the purposes of journalism and become held instead, say, solely for archival purposes, that necessarily will depend on the facts of any particular case and involve a question of judgment.

Since my request is for archived information ICO needs to assess how the information requested remains related to “the purposes of journalism”

3.

On 25 August 2016 BBC Information Rights wrote:

the decision about whether the requested information is held for the purposes of journalism, art or literature will be based on the individual circumstances in each case.

Clearly this is impossible as the information requested relates to all output on an ongoing basis.

In the Judgement Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation and another (Respondents), LORD PHILLIPS wrote:

67. However, Lord Neuberger accepted that archived material would not, as such, fall within the protection afforded by the definition. I consider that he was right to do so. Disclosure of material that is held only in the archives will not be likely to interfere with or inhibit the BBC’s broadcasting functions. It ought to be susceptible to disclosure under the Act. If possible “information held for purposes other than those of journalism, art or literature” should be given an interpretation that brings archived material within that phrase. Can this be achieved? I believe that Lord Walker has the answer. He has concluded, as have I, that the protection is aimed at “work in progress” and “BBC’s broadcasting output”. He suggests that the Tribunal should have regard to the directness of the purpose of holding the information and the BBC’s journalistic activities. I agree. Information should only be found to be held for purposes of journalism, art or literature if an immediate object of holding the information is to use it for one of those purposes. If that test is satisfied the information will fall outside the definition, even if there is also some other purpose for holding the information and even if that is the predominant purpose. If it is not, the information will fall within the definition and be subject to disclosure in accordance with the provisions of Parts I to V of the Act.

I therefore wish to appeal at the First-tier Tribunal (Information Rights) based on the counter-arguments I have outlined.