BBC argues it is not bound by FOIA in bid to keep Climate 28 secret

We're private sector! Auntie's shock claim

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Analysis BBC lawyers are insisting the law treats the public-funded broadcaster as a private body in a battle to resist a Freedom of Information request.

At the heart of the six-year case lies the question of whether or not the public is entitled to ask the Beeb questions and have them answered using FOI legislation. It will test the broadcaster's obligation to meet high standards of openness and transparency as required by its charter. Success for the BBC would mean no one outside of a parliamentary committee can scrutinise the corporation's journalism.

The history of the Beeb

The BBC began life in 1922 as a private consortium of what would now be referred to as telecoms companies and the state postal service. Five years later the British Broadcasting Corporation was established under a royal charter, and enjoyed a monopoly on TV broadcasting that continued into the 1950s and on radio broadcasting into the 1970s. Funding was through a hypothecated tax, first on radio sets, then on TV sets, and now on real-time reception of a TV signal.

What allowed this quirky arrangement to survive was the proposition that the BBC was not a wing of the state, but independent from it, and answerable not to politicians but to the citizens who funded it. The charter obliged the BBC to be impartial. However state bullying of the corporation is commonplace, and reached a peak in 2004 when the director-general and chairman of the BBC were both obliged to resign, the charter was rewritten and a new organisational structure imposed upon it.

The principle of "who holds the BBC to account?" is therefore very much alive. Yet politicians have their own agendas. And today, the political class is also drawn from the same elite as the media class, an ever-diminishing gene pool. As the author of the satirical Twitter account @FakeSteveHilton wrote, politics is a "magic circle" of friends. Allowing the citizen to ask questions to hold the BBC to account is vital, since - as Lord Patten wrote last month - the public "own" the BBC.

"We can never forget our responsibilities to the public who own the BBC"
Lord Patten, chairman of the BBC Trust, in a letter to the FT, 11 October 2012

Who were the secret 28 who shaped climate debate at the BBC?

The latest proceedings to test whether citizens can effectively scrutinise the broadcaster is Anthony George Foster Newbery vs The Information Commissioner and the BBC (AE/2009/0118), a case before the information tribunal in London. The argument that the Beeb is a protected private body was advanced by the corporation's legal team during two hearings last week.

The tribunal is probing the BBC's refusal to release, in response to a Freedom of Information Act request, the names of attendees of a high-level policy seminar on climate change in January 2006. The seminar, which was held by the corporation and invited 28 "scientific experts", was later cited by the BBC Trust as the basis for the broadcaster's abandonment of impartiality when reporting on climate change.

The identity of a small number of attendees has emerged, including Lord May and anti-growth activist Andrew Simms, who co-authored a book with one of the organisers of the seminar, climate-change campaigner Dr Joe Smith, a lecturer at the Open University. Dr Smith wrote that "everyday human activity – moving, eating, keeping warm or cool – is gently stoking what many reckon will be a slow-boil apocalypse".

But what's at stake is a principle: not whether Newbery is right to have the guest list - but whether Newbery, or you or I, may be permitted to enquire at all. BBC lawyers are arguing that we can not.

The Freedom of Information Act applies to "public authorities" and the BBC is nominally one. Lord Phillips, in 2009, described it as a hybrid authority - a public authority with an opt-out to withhold information "held for the purpose of journalism, art or literature". Under the opt-out, it the BBC does not even need to acknowledge it holds the material requested if it is for the "purpose of journalism".

Was this exception intended to protect a journalist's confidential sources - or can it be applied sweepingly to withhold policy and management decisions too? A wide interpretation of the exception would permit the BBC's interpretation of its charter obligation to go unquestioned. The argument is over the word "purposes" - and how broadly or narrowly "purposes … of journalism" should be applied.

In 2006 a tribunal ruled that the journalism exception should be interpreted narrowly, and that an internal review document, the Balen Report, should be disclosed. The Sugar case, as it became known, took several years to resolve. The Court of Appeal agreed with the tribunal that "the question whether information is held for the purposes of journalism should thus be considered in a relatively narrow, rather than a relatively wide, way".

But the BBC appealed and the ultimate authority in the land, the Supreme Court, agreed with the broadcaster in February 2012, drawing a veil over the corporation's strategic policy decision making.

This is now about the right to ask, not just the right to know

Newbery argues that his case is different to Steven Sugar's attempt to unearth the Balen Report, which was a sensitive internal review into Auntie's coverage of the Middle East and the hostilities between Israel and Palestine.

By contrast, the climate-change seminar had been widely publicised, blogged about, and became particularly significant when it was cited as a justification by the BBC for an unprecedented change in policy, one which potentially conflicted with its charter's obligations. Even the BBC Trust noted that, as a result of the meeting, the corporation formed "the view that the weight of evidence no longer justifies equal space being given to the opponents of the consensus [on anthropogenic climate change]".

For its part, the BBC doesn't wish to be assailed by bothersome requests. The Supreme Court noted this year that Irish Freedom of Information law is much more specific about what the broadcaster RTÉ, which also operates under a charter obliging it to honour impartiality, may disclose and withhold. Yet in practice only two cases have advanced sufficiently to really test the "purposes of journalism" opt-out in 12 years, and Newbery's is only the second. And his case received no publicity from the corporation's professional critics nor its commercial rivals.

At the hearing last week, the BBC's first line of defence was that "purposes of journalism" should be interpreted so broadly it should exclude the evidence it gathers for policy making. The second line of defence was that the attendee list should be kept secret because the meeting was held under the Chatham House Rule, a voluntary piece of reporting etiquette regarding attribution of quotes.

During cross-examination, BBC Director of News Helen Boaden said she announced the rule in her opening remarks at the seminar. Newbery, who is representing himself against the BBC's legal squad, attempted to ask her if the invitations had mentioned the Chatham House Rule - if they did not then attendance could hardly be conditional on a guarantee of anonymity by the BBC. The judge, however, cut Newbery off. No invitations have survived, it appears.

In court the BBC could produce no written evidence that the rule applied to the meeting, although the tribunal judge took their word that it did, and the BBC argued that no notes of the meeting have been kept. Several lines of questioning of Boaden by Newbery were prohibited by the tribunal judge, David Marks QC, who castigated Newbery for not asking the right questions.

Newbery also argued that the disclosure of the list would not in itself attribute any public quotes to attendees, since there aren't any quotes in the public domain, and would not constitute a breach the Chatham House Rule. The corporation's legal team then argued the BBC should be regarded as a private body.

Newbery told us the broadcaster could have avoided years of expensive legal wrangles if it had simply disclosed the attendees list, causing a minor "overnight story" that would quickly have been forgotten.

The BBC uncertainty principle: It's public until you try to observe it

El Reg asked the BBC why it was arguing so strongly to be considered "private". A spokesperson told us:

The reference is to the unusual position the BBC, and certain other so called 'hybrid' authorities, find themselves in under the Freedom of Information Act [FOIA].

Whilst the BBC is a public body for certain purposes when it holds information for 'the purposes of journalism, art or literature' it is not regarded as a public authority in relation to that information.

So whilst the BBC is a public authority it has to technically be a private or "non-public" body under the FOIA for this information.

Meanwhile, Beeb sources insisted that the case does not have implications for the public scrutiny of the BBC.

But, of course, it does. The legal strategy, as we've seen in the cases of Sugar and Newbery, is to argue that it can derogate from the Freedom of Information Act using the "for the purposes of journalism" catch-all clause - even if this conflicts with its charter obligations.

"The BBC is answerable only to the licence-fee payers, its charter and the truth. It has never been, and never should be, answerable to politicians. And for MPs to lecture the BBC on trust points to the death of irony"
AA Gill, 4 November 2012

The BBC wants to be open and transparent only until it is asked a question by the public - then it must be entitled to be closed and opaque, rebuffing information requests as invalid. It's as though Heisenberg's uncertainty principle has shaped corporate policy.

It may surprise some TV licence payers to know that while the BBC ("It's your BBC") conducts "listening exercises" and is guaranteed a £20bn hypothecated tax windfall, it regards itself as a "private". The worst of all worlds?

"I just want the BBC to do what it says on the label," Newbery told us. "The public should know who the BBC is relying on for expert opinions that inform editorial policy." ®

Andrew warmly welcomes your email.

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