Freedom of Information Internal Review decision Internal Reviewer Louise Lander, Advisor FOI Reference IR2013022 (RFI20130166) Date 26 April 2013 Requested information The applicant wrote to the BBC on 1 February 2013, requesting the following information under the Freedom of Information Act (‘the Act’); For over a year the BBC has been provided with evidence of illegal activities that, in any normal media sense, would have been used as a national scoop. Please provide the information showing how each of the instances within which the material that was sent to each of the recipients below, among others, was processed through your organisation, including showing how the decisions were made not to use that information in each instance. daily.politics at bbc.co.uk newsonline at bbc.co.uk, sundaypolitics at bbc.co.uk, sundaypolitics.yorkslincs at bbc.co.uk, rony.robinson at bbc.co.uk, newsnight at bbc.co.uk, panorama.reply at bbc.co.uk, peter.horrocks at bbc.co.uk, peter.rippon at bbc.co.uk, today at bbc.co.uk, jo.carr at bbc.co.uk, steve.herrmann at bbc.co.uk, john.Humphrys at bbc.co.uk, sarah.montague at bbc.co.uk, james.naughtie at bbc.co.uk, james.reynolds at bbc.co.uk, john.sweeney at bbc.co.uk, mike.wooldridge at bbc.co.uk, Issues on review On 28 February 2013, the BBC wrote to the applicant, seeking clarification of the nature of the “illegal activities” in order to identify the information requested; the BBC also advised the applicant that the request was ‘on hold’ until clarification was received. The applicant replied on the same day, stating that a breach of section 10 of the Act had occurred as the information had not been provided, and seeking an internal review of “your decision not to provide the information being withheld”. In a further letter of 31 March, the applicant asked for the withheld information to be provided, “along with an explanation as to why a specious and fatuous excuse was used to extemporise”. To date, the applicant has not provided further clarification of the request. Decision Section 10(1) of the Act states that a public authority must inform the applicant in writing whether it holds the information requested and if so, communicate that information to the applicant, promptly, but not later than 20 working days after receipt of the request. However, section 1(3) of the Act provides that: “where a public authority – (a) reasonably requires further information in order to identify and locate the information requested, and (b) has informed the applicant of that requirement” the authority is not required to comply with the request until that further information is provided. The Section 45 Code of Practice deals with the provision of advice and assistance where an authority is relying on section 1(3). Regarding the seeking of clarification by a public authority, paragraph 9 of the Code sets out: “It is important that the applicant is contacted as soon as possible, preferably by telephone, fax or e-mail, where more information is needed to clarify what is sought.” As the applicant noted in his request for review, the BBC did seek clarification of the request within the 20 day statutory deadline. However, it is clear that this was sought at a very late stage in the ‘life-cycle’ of the request, and in seeking clarification some time after the request had been made, the BBC did not meet the standards of best practice set out in the Code of Practice on this occasion. That said, I find that it remains the case that the wording of the request does not clearly describe the information sought, and that while it would have been appropriate to seek clarification at an earlier stage, the BBC was nevertheless correct to seek further details in order to identify the requested information. Specifically, the request does not identify what ‘illegal activities’ it is referring to; while the activities are described as having been alleged for “over a year” and “a national scoop”, this is not sufficient to identify the subject matter with the certainty necessary to process the request and reach a decision under the Act. If one takes into consideration the wider background of events topical at the time that the request was made, it could be inferred that the request is intended to refer to any information provided to the specified BBC recipients in respect of allegations made against Jimmy Savile. I should stress that this is a possible interpretation which itself goes beyond the description of the information provided in the request itself - confirmation that this is correct would therefore still need to be sought from the applicant. It is clear that the request asks for any information showing how evidence of the ‘illegal activities’ (whatever their precise nature) provided to the specified recipients was processed by the BBC; particularly, the request asks for any information showing how decisions were made ‘not to use that information in each instance’. As the email addresses specified in the request all belong to BBC news programme websites, reporters and correspondents, it is reasonable to interpret the request, at a general level, as seeking information about decisions in respect of material provided to the BBC’s journalists as source material for their reporting of news items. I should therefore advise that this is a type of information that is excluded from the Act. Decisions about which topics and material to cover in our broadcast output are editorial, and choices about which material to broadcast or publish relate directly to the editorial process by which the output is created. Information which relates to editorial decisions is therefore held for the purposes of journalism, art or literature, and there would be no requirement to provide any relevant information in response to a request under the Act. Part VI of Schedule 1 to FOIA provides that information held by the BBC and the other public service broadcasters is only covered by the Act if it is held for ‘purposes other than those of journalism, art or literature”. As noted above, should the applicant wish to provide confirmation of the subject of the request, we will consider the request on the basis of this clarification. However, it remains the case that when a request seeks information about decisions to broadcast or publish particular items of news, information of this type will fall outside the scope of the Act regardless of the precise nature of the material believed to be provided to the BBC (in this case, information about the ‘illegal activities’). Further information about how the Act applies to the BBC can be found in Annex A. Appeal Rights If you are not satisfied with the outcome of your internal review, you can appeal to the Information Commissioner. The contact details are: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF; Telephone 01625 545 700 or www.ico.gov.uk Louise Lander Advisor FOI BBC Information Policy and Compliance Annex A Freedom of Information From January 2005 the Freedom of Information (FOI) Act 2000 gives a general right of access to all types of recorded information held by public authorities. The Act also sets out exemptions from that right and places a number of obligations on public authorities. The term “public authority” is defined in the Act; it includes all public bodies and government departments in the UK. The BBC, Channel 4, S4C and MG Alba are the only broadcasting organisations covered by the Act. Application of the Act to information held by the BBC for the purposes of journalism, art and literature It is important to bear this in mind when considering the Freedom of Information Act and how it applies to the BBC. The Act does not apply to the BBC in the way it does to most public authorities in one significant respect. It recognises the different position of the BBC (as well as Channel 4 and S4C) by saying that it covers information “held for purposes other than those of journalism, art or literature”. This means the Act does not apply to information held for the purposes of creating the BBC’s output (TV, radio, online etc), or information that supports and is closely associated with these creative activities. Part VI of Schedule 1 to FOIA provides that information held by the BBC and the other public service broadcasters is only covered by the Act if it is held for ‘purposes other than those of journalism, art or literature”. This limited application of FOIA to public service broadcasters was to protect freedom of expression and the rights of the media under Article 10 European Convention on Human Rights (“ECHR”). The BBC, as a media organisation, is under a duty to impart information and ideas on all matters of public interest and the importance of this function has been recognised by the European Court of Human Rights. Maintaining our editorial independence is a crucial factor in enabling the media to fulfil this function. A great deal of information within this category is currently available from the BBC and will continue to be so. If this is the type of information you are looking for, you can check whether it is available on the BBC’s website bbc.co.uk or contact BBC Audience Services. The BBC The BBC's aim is to enrich people's lives with great programmes and services that inform, educate and entertain. It broadcasts radio and television programmes on analogue and digital services in the UK. It delivers interactive services across the web, television and mobile devices.