LONDON (EJP)---The BBC looked to have won a High Court case against a British Jewish resident, who had launched a lengthy battle demanding it release an internal report into the balance of its Middle East coverage.

Steven Sugar, a solicitor from London, had demanded that the corporation release the contents of the Balen Report, which is a 20,000-word study that he suspects contains evidence of an anti-Israeli bias in the publicly-funded broadcaster’s news programming.

In attempting to do so, he was using the UK’s Freedom of Information Act (2000), which was introduced to make more of the information from public bodies and Government department available to the public.
However, a judge at London’s High Court today ruled that an earlier decision by a tribunal to order the BBC to release the information is likely to have been invalid and should be quashed.

The tribunal had overturned an earlier decision by the Information Commissioner, which by law has the final say over disputed Freedom of Information releases, and which had ruled in the BBC’s favour.

Final judgement

Speaking Wednesday after a two-day appeal by the BBC, Justice Davis today indicated that the tribunal probably acted outside its powers in overruling the commissioner - however he retired until after Easter before making his final judgement.

The ruling is expected to have huge implications for the Freedom of Information legislation in the UK, which has already come under fire from some quarters for giving the Government and public bodies too many hidden ’get out clauses’ preventing them from having to release information.

Sugar, however, said he was disappointed with the decision, and confirmed that he had made another legal application to get the report by judicial review, which would give the case another hearing before a judge.

"It creates very considerable difficulties for the administration of the Freedom of Information Act and is against the public interest," Sugar, a trained solicitor, said.

"The judge himself said he was very unhappy about the outcome. We don’t have the judgment yet, but it will probably mean that, if members of the public cannot go to the tribunal, the only way they will be able to challenge decisions of the Information Commissioner will be to seek judicial review at the High Court, which can be very expensive."

Disappointment

Sugar added: "I am disappointed in relation to the jurisdiction of the tribunal, but can’t say I am entirely surprised as it is a difficult point of law.

"I await the result of my judicial review application with high hopes."
The BBC said it welcomed the judge’s indication that he was going to rule in the corporation’s favour with regard to the Information Tribunal.
A spokesman said: "This clarifies that, in cases where the Information Commissioner agrees with a public service broadcaster that the information sought is outside the scope of the Freedom of Information Act, there is no appeal to the Information Tribunal.

"We await the court’s decision on Mr Sugar’s case against the Information Commissioner’s ruling that the BBC does not need to release the Balen report."

Sugar said he applied to see the report because "a very large proportion of the Jewish community felt, rightly or wrongly, that the BBC’s reporting of the second Palestinian intifada, or uprising, that broke out in 2000 was seriously distorted".

He said: "I myself, as a member of the Jewish community, felt that and was very distressed by it. I am even more distressed that the BBC failed, until it commissioned the Balen Report, to respond substantively to the criticism.

"Now I don’t know whether it is important to see this report or not. Instinct says that if they don’t want to give it to me it may be important.

"The BBC is a public body and I believe I have a right to know what the report contains."

The report he wants to see was compiled by Malcolm Balen, a senior editorial adviser, in 2004. It examines hundreds of hours of BBC radio and television broadcasts.

The BBC is only covered by the Freedom of Information Act "for purposes other than those of journalism, art or literature". Along with Channel 4, Britain’s other public service broadcaster, the BBC is allowed to hold back material that deals with the production of its art, entertainment and journalism. On this basis, the corporation has rejected more than 400 Freedom of Information requests.

Sugar’s central argument was that the Balen report was not held by the BBC for the purposes of journalism "because it’s a report about journalism itself", and therefore he was entitled to apply to see it under the Freedom of Information Act.