15th Dec 2022

For the Appellant: Thomas Roe K.C., Counsel.


REASONS

Introduction:   

[1]         This decision relates to an appeal brought under section 57 of the Freedom of Information Act 2000 (“the FOIA”). The appeal is against the decision of the Information Commissioner (“the Commissioner”) contained in a Decision Notice (“DN”) dated 8 September 2021 (reference IC-81154-W4D3), which is a matter of public record.

[2]         The Tribunal part heard the appeal on 6 May 2022 when the Appellant and Second respondent presented their legal submissions.  The central issue in this case is whether information about editorial complaints falls within the derogation in Part IV of Schedule 1 FOIA, which provides that information held by the BBC is not disclosable pursuant to the FOIA if it is held for the “purposes …. of journalism, art or literature”.  The Second Respondent relied, inter alia, on a number of earlier FTT decisions and also numerous ICO Decision Notices where the ICO upheld BBC decisions that requested information about editorial complaints are ‘held’ for the purposes of journalism. [ OB. 4.1/ 190].  The Tribunal considered that it was not bound by these previous decisions and that it did not have sufficient evidence to reach a conclusion about the link between complaints and editorial output. Accordingly, the hearing was adjourned and the Tribunal issued Directions to the BBC to provide such evidence and further evidence about the searches in relation Part 3 of the Request.

[3]         The second hearing took place on 23 November 2002. By agreement between the Appellant and the Second Respondent the focus of the hearing was on the evidence submitted by the BBC in relation to Parts 2 and 3 of the request. Some of this evidence was heard in closed session. A gist was provided to the Appellant and additionally the BBC provided some further explanatory narrative in relation to the closed elements of the witness statament.

[4]         In the light of the legal submissions and the evidence the Tribunal concludes that the Commissioner did not err in law in relation to Parts 1 and 2 of the request, but did so in relation to Part 3.

Factual Background to this Appeal:

[5]         Full details of the background to this appeal, the complainant’s request for information and the Commissioner’s decision are set out in the DN. The appeal concerns a request for information relating to editorial guidelines, copies of complaints, and the recruitment to a post that was then occupied by Professor Richard Sambrook. In response, the British Broadcasting Corporation (“BBC”) explained that the first two parts of the request were covered by the derogation from the FOIA. Further, that the third part of the request was exempt under section 40(2) FOIA. Subsequent to review the BBC stated that the information was not held.

[6]         The Commissioner maintains the position set out in her DN; namely that at part one and two of the request, the information is held for the purposes of ‘journalism, art or literature’ and does not fall inside the FOIA. The Commissioner accepts, on the balance of probabilities, that the BBC does not hold any information relating to part three of the request. The Appellant now appeals against the DN. The Commissioner opposes the appeal and invites the Tribunal to uphold the DN.

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