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RFI20120780 - Final Response

RFI20120780 - Final Response

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Published by Raheem Kassam

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Published by: Raheem Kassam on Aug 24, 2012
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08/24/2012

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Raheem KassamBy email to: raheem@thecommentator.com10 August 2012Dear Mr Kassam,
Freedom of Information request
RFI20120780
 Thank you for your request to the BBC of 19 July, seeking the following information under theFreedom of Information Act 2000:
1) The Balens Report 2) How much in legal costs the BBC has incurred due to or regarding the Balens Report 
 I will address each of your questions in turn.1.
 
The information you have requested is excluded from the Act because it continues to beheld
for the purposes of ‘journalism, art or literature.’ The BBC is therefore not obliged to
provide this information to you and will not be doing so on this occasion. Part VI of Schedule 1 toFOIA 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
”.The BBC is not required to supply information held for the purposes of creating the BBC’s output
or information that supports and is closely associated with these creative activities.
1
 The Balen Report is an internal review of programme content which is currently held to inform
and support the BBC’s coverage of the Middle East. As such, the BBC considers that it is clearly
being held for the purposes of journalism, and therefore the BBC is under no obligation todisclose it.The BBC has previously declined, under the Act, a number of requests for the Balen Report forthe same reason. The Act affords the BBC protection for its journalistic and editorial
1 For more information about how the Act applies to the BBC please see the enclosure which follows this letter.Please note that this guidance is not intended to be a comprehensive legal interpretation of how the Act applies to theBBC.
 
 
independence by maintaining a creative and journalistic space for programme makers to producematerial for broadcast free from external interference.You may be aware that the decision not to disclose the Balen Report has most recently beenupheld by the Supreme Court, and I enclose a link to the Judgement for your information:http://www.supremecourt.gov.uk/docs/UKSC_2010_0145_Judgment.pdf It i
s important to note that the BBC’s decision to continue to defend its position has nothing to do
with the fact that the review is about the Middle East, the same approach would have been takenwhatever area of news output was covered by the review.You may not be aware that one of the main policy drivers behind the limited application of the Actto public service broadcasters was to protect freedom of expression and the rights of the mediaund
er Article 10 European Convention on Human Rights (“ECHR”). The
BBC, as a mediaorganisation, is under a duty to impart information and ideas on all matters of public interest andthe 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 thisfunction.That said, the BBC makes a huge range of information available about our programmes andcontent on bbc.co.uk. We also proactively publish information covered by the Act on ourpublication scheme and regularly handle requests for information under the Act.2.
 
With regard to the legal costs incurred by the BBC, it should be noted that:
o
 
The figure represents the costs incurred relating to the case before the InformationTribunal (as it then was) (c.2006), before the High Court (c.2007), Court of Appeal(c.2008) and House of Lords (c.2009), and again before the High Court (c.2009), the Courtof Appeal (c.2010) and Supreme Court (c.2012).
o
 
The BBC was represented throughout by its in-house legal department. The cost therefore
include externals counsel’s fees and court fees but does not include an amount torepresent the time spent by the BBC’s salaried in
-house lawyers given that the BBC is notcharged for the time that is spent on each case.
o
 
VAT is excluded from the figure belowThe legal costs incurred by the BBC amount to £332,780.47.
Appeal Rights
The BBC does not offer an internal review when the information requested is not covered by theAct. If you disagree with our decision that the Act does not apply to your request for the BalenReport, you can appeal to the Information Commissioner. Contact details are: Information
 
 
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF telephone01625 545 700.http://www.ico.gov.uk. If you are not satisfied that the BBC has complied with the Act in responding to your questionabout the legal costs associated with the Balen Report, you have the right to an internal review.Please contact us, explaining what you would like us to review under the Act and including yourreference number. If you are not satisfied with the internal review, you can appeal to theInformation Commissioner, as above.Yours sincerely,Stephanie SimmondsSenior Advisor
BBC Information Policy and Compliance
 

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