Original URL: http://www.theregister.co.uk/2013/01/31/bbc_28gate_legal_fees/

BBC: What YOU spent on our lawyers in Secret Climate 28 debacle

The only UK govt agency with a blanket FOIA exemption

By Andrew Orlowski

Posted in Science, 31st January 2013 08:59 GMT

The BBC has revealed the cost to the licence-fee payer of its surreal legal fight to keep a publicly available list from the public. Or at least a small part of the cost we all paid in the affair which became known as "28Gate".

Regular readers will no doubt recall that 28Gate saw the Beeb attempt to keep secret the names of 28 people whom - it said - had convinced Auntie corporately that there was no longer any need to include sceptical viewpoints in its coverage of climate change. These folk were said to include "some of the best scientific experts".

A hefty legal team was deployed to keep the "experts"' identities secret in the face of FOIA requests from blogger Tony Newbery (who represented himself) but in the end the names were discovered on the Wayback Machine, which had archived a webpage listing them all before their names and affiliations could be erased. (Curiously enough, the names had disappeared from the current version of that page - on the website of a green advocacy organisation - shortly after the FOI requests were received by the BBC.) As had been expected the secret 28 included few scientists of any repute, and plenty of green lobbyists and activists.

In response to two further FOI requests, the Corporation has now disclosed that the cost of hiring external help for the one-and-a-half day Information Tribunal hearing last October came to £22,746 including VAT. This breaks down to Kate Gallafent, of Blackstone Chambers who cost £13,875 (plus VAT) and Jonathan Scherbel-Ball, of One Brick Court who cost a paltry £4,780 (plus VAT).

However, it's merely the tip of the iceberg. The BBC says "the majority of Freedom of Information work is carried out in-house within the BBC" and "it does not hold information relating to the cost of in-house work". Four BBC legal staff were present at the Tribunal alongside Gallafent and Scherbel-Ball, in order to fight off a blogger who was representing himself.

The serried BBC lawyers used a derogation, or opt-out, under the Freedom of Information Act that permits the Corporation to withhold information if it is required "for the purposes of journalism" - a clause designed to protect journalists from having to reveal their sources.

It subsequently emerged that the derogation has been broadly applied by the BBC's legal team to withhold information from the public on a wide range of subjects, ranging from social media guidelines, to US income, to web site traffic. Even legal costs in previous FOI cases have been withheld using the "purposes of journalism" derogation. The latest misuse of the derogation sees the BBC refuse to name the judges of the Radio 2 Folk Awards.

This odd saga has another surreal twist.

After the identity of the 28 was unearthed, Newbery wrote to the BBC asking whether it would confirm the authenticity of the "Climate 28" list. The BBC's Caroline Hilditch sniffily replied: "the BBC is not required to disclose any information and will not be commenting on the list you have referred to."

A heroic performance by the BBC legal team, then, from start to finish. ®

Bootnotes

The 2007 Bridcut Report for the BBC Trust contained a strong warning for the Corporation. "The BBC has many public purposes of both ambition and merit – but joining campaigns to save the planet is not one of them," wrote Bridcut. "Acceptance of a basic scientific consensus only sharpens the need for hawk-eyed scrutiny of the arguments surrounding both causation and solution."

Some thoughts on how the BBC can belatedly implement the advice can be found here.

It contains a short history of how Auntie's editorial policy developed in the mid-Noughties.

The Register's management sometimes wonder just why the Beeb is so keen to avoid disclosing how much overseas web traffic it gets and how much overseas money it makes. It's interesting to us, as we get a lot of US web traffic and we're keen to make money there too.

We sometimes suspect that if major US media organisations knew how well the Beeb was doing in their home market, they might perhaps bring up the issue of the enormous and (certainly in the context of US market competition) highly unfair British government subsidy enjoyed by the BBC. This could perhaps put something of a crimp in the Beeb's US commercial operations once the relevant US regulators got involved. Other US industries often raise such concerns regarding foreign competitors, after all.

On the other hand it seems entirely reasonable to keep secret the identities of the Folk Awards judges. The consequences of being publicly outed as an expert in folk music could be devastating. - Ed