The BBC, Environmental Information Regulations and a very convenient loophole

When I asked the BBC for the names of what they described as ‘the best scientific experts’ who attended their 2006 seminar on climate change (here), I made the request under both the Freedom of Information Act and the Environmental Information Regulations. Although these two pieces of legislation are similar in intent, to promote transparency in public life, there are some subtle differences in the ways that they apply;

FOI Act: Refers to information held by a wide range of government agencies and other organisations that are publicly funded. These are identified in schedules to the act and include both the BBC and universities. There are common sense exceptions that allow certain information not to be divulged; national security, the police, courts of law and some kinds of personal data among others. There is also a clause that overrides some of the exceptions if releasing the information is considered to be in the public interest.

In the case of the BBC and ITN, these bodies are only subject to the FOI Act where information is not held for the purposes other than ‘journalism, art or literature’. Providing a degree of confidentiality to journalists is understandable. Who would speak off the record to a reporter if they thought that what they said might be brought into the public domain as a result of an FOI Act application? On the other hand, the act does not define ‘journalism, art and literature’, a shortcoming that the BBC seems only too willing to exploit.

The FOI Act came into effect in 2000 and is UK legislation, as opposed to EU law.

EIR: The type of information that must be disclosed is obviously more specific here, but the regulations apply not only to all the bodies specified in the FOI Act, but to many that are not. For instance even contractors used by publicly funded bodies are subject to the regulations, as are utility companies and major contractors used by such bodies. There are also fewer exceptions than in the FOI Act.

The EIR is not British legislation, but European Union legislation that the UK has signed up to.

When I applied to the BBC for information about the climate change seminar, I was under the impression that they must be subject to the EIR, as were many others, including the Information Commissioner’s Office (ICO), which oversees compliance with both the FOI Act and the EIR. In a letter to the BBC about my appeal against their decision not to provide me with the information I wanted, dated 28^th July 2008, the ICO said:

Following an initial review of this case, I think it is likely that some or all of the information withheld is environmental information as defined by the Environmental Information Regulations (EIR). I have noted that the BBC’s position is that it is not covered by the EIR but deals with request for environmental information under the Act. I also noticed that the BBC explained in response to a previous FOI request that it had sought legal advice on its position regarding EIR.

I would be grateful if the BBC could explain in detail why it considers that it is not covered by the EIR and also comment as to whether it considers the information withheld is environmental. I would also appreciate if the BBC could consider disclosing to the Commissioner the legal advice received on the EIR and the BBC to assist us in determining the BBC’s position as a public authority under the EIR.

[Letter from the ICO to the BBC, 28th July 2008]

After receiving a response from the BBC, the Information Commissioner’s Office wrote to me as follows:

Thank you for your email which I received today on my return to the office. I understand your concerns regarding the application of the Environmental Information Regulations (EIR) in relation to your information request, however, we agree with the BBC that they are not covered by the EIR for the following reasons.

Section 2(2) of the EIR states that a ‘public authority’ means-

(a) government departments

(b) any other public authority as defined in section 3(1) of the Act (the Freedom of Information Act), disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding –

(i) any body or office-holder listed in Schedule 1 to the Act, only in relation to information of a specified description;

The BBC are listed in Schedule 1 of the Act only in respect of information held for purposes other than those of journalism, art or literature. Therefore they fall within the definition of 2(2)(b) (i) and are not a public authority for the purposes of the EIR.

This means that the BBC should (and do) deal with requests for environmental information under the Act.

[Email from the ICO to me dated, 26th September 2008]

Subsequently, I have learned that an eminent solicitor with considerable experience of trying to obtain information from the BBC considers that this interpretation is correct. The BBC are not subject to the EIR, and that does not just apply to information held ‘for the purpose of journalism, art or literature’ only. It would appear that the BBC is not subject to the EIR, full stop.

The purpose of the EIR was to prevent government funded bodies concealing unacceptable environmental practices. Given the copious and often sanctimonious news and current affairs output from the BBC on the subject of global warming and other ‘green issues’, one might have expected the corporation to embrace the EIR in order to avoid criticism and set an example. Instead, they have paid lawyers – with licence payers’ money – to find a legal loophole that allows them to withhold information that they would otherwise have to divulge.

Here are some examples from Jeremy Paxman’s article on BBC hypocrisy, which point to some very shabby environmental practices indeed:

The BBC’s environment correspondents, even the makers of series like Planet Earth, are trapped in a bizarre arrangement in which they travel the globe to tell the audience of the dangers of climate change while leaving a vapour trail which will make the problem even worse.

The BBC believes that people do not pay their licences fees to see them spent on offset arrangements. So correspondents like David Shukman ….. pay from their own pockets to offset the costs of their flights.

… with the massive deployment to the Beijing Olympics looming, and filming for another Planet Earth series under way – to say nothing of the numerous vital overseas fact-finding tours of senior management – a corporation-wide policy is urgently needed.

In the last three years the BBC’s electricity bill has doubled (from almost £6.5m to nearly £13m).

According to the corporate responsibility adviser, new BBC buildings are required to meet high environmental standards. I find this hard to believe when the tens of millions spent on the news centre at Television Centre has resulted in an edifice in which the air-conditioning units have to be kept running even in the middle of January. Computer terminals and lights blaze away all night.

[Jeremy Paxman’s article was published in Feb 2007, over eighteen months ago.]

It would seem that, if anyone asks for information about the BBC’s enormous electricity bill, because they were concerned about carbon emissions, then this would be dealt with under the FOI Act, rather than the EIR, which is specifically intended for this purpose. And if they were to ask for information about internal discussions at the BBC concerning the need to offset the carbon emissions caused by environment correspondents jetting around the world, then this would also be dealt with under the FOI Act too. But the FOI Act also makes it possible for them to refuse to divulge information by citing the ‘journalism, art and literature’ derogation, whereas the EIR would not.

I wonder how many license payers would condone the corporation’s refusal to tell me who attended that climate change seminar in 2006? Had the EIR applied in this case, then they would have had no alternative but to do so.