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 28th 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.
Tony
Referring back to the original FoI request, I wonder if you might go back to them to discover if there was some written output. Also, I think you could reasonably press them again for the letters of invitation (emphasising that they can redact the names and addresses). This would allow us to check on the assertion that the seminar was held under Chatham House rules.
Bishop Hill
My original FOI Act complaint is still being considered by the ICO. On 2-3rd December the House of Lords will hear an appeal against the decision of the High Court in the Balen Inquiry case. (See here and here) As this has obvious implications for my own case, I have asked the ICO to postpone a decision until the result is known and, if ‘favourable’, its implications have been assessed.
So far as the Chatham House Rule is concerned, I have made contact with Chatham House through a friend who is involved in arranging meetings under the rule. They do not know the answer and will only consider it if or when this becomes an issue.
In the meantime I have made another FOIA / EIR application (not to the BBC this time) and hope to be able to put up a post about this next week.
(I think you mean Email dated 26 November 2008)
As I understand it, the Balen case appeal it is to do with the Information Tribunal’s judicial capacity review and overturn the ICO’s decision that a body is not a public authority based upon the purpose for which the information is held.
The case in question here, surely is that the ICO is accepting the argument put by the BBC that it is not covered by the EIR at all! It claims that EIR r.2(2)(i) exempts it. This seems to me to say, perhaps in a bit of poor drafting that for EIR a public authority is:
The BBC is listed as “The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature”. Should r.2(2)(i) be interpreted as excluding the body i.e. the BBC or the information i.e. that held for the purposes of journalism, art or literature as it clearly means in the FOIA?
I can not see how the BBC can possibly be exempt under the Aarhus Convention or DIRECTIVE 2003/4/EC. Maybe you should suggest to the ICO that Parliament could not have intended to exempt the BBC entirely and they should limit their interpretation of r.2(2)(i)to exempting the BBC from EIR only in respect of information held for the purposes of journalism, art or literature. You would still have to win the purpose argument though.
David
Typo corrected – thanks!
If the Law Lords find for Sugar, then I assume that the Information Tribunal’s decision that the ICO must require the BBC to release the Balen report will stand. The IT’s basis for this ruling was the strict definition of ‘for the purpose of journalism, art or literature’, which would almost certainly apply to my case too. As you say, the issue is whether the IT and the ICO have jurisdiction in cases where the BBC has invoked the Schedule 1 derogation. If they do, then the BBC will find it a whole lot more difficult to hide embarrassing information that should be in the public domain behind spurious claims that it is held for the purpose of journalism art or literature.
I realise that this is a long shot, but if Sugar wins, then it may lead to the BBC being compelled to cough up the information that I want, and we should know pretty soon.
The message rehearsing the BBC’s legal basis for not being a public body so far as the EIR are concerned was not, so far as I am aware, a formal decision letter, but merely an update on the progress of their inquiries. I will write to them tomorrow about the Aarhus Convention and DIRECTIVE 2003/4/EC, but I am more concerned about the Law Lords decision at the moment as this could provide a short cut to the information, whereas getting embroiled in EU law is likely to prolong matters.
Update 26/11/2008 21:45: I have edited the first paragraph of this comment to correct an error of fact concerning the Information Tribunal’s ruling.
One needs to read the the judgement that is being appealed next week. The issue is that the IT can only look at Decision Notices, which are only issued if there is a complaint against a public authority. If the ICO decides the BBC is not a public authority he does not issue a DN, but just says what he decided and the complainant can seek judicial review instead of going to the IT.
The judgement looked pretty solid to me and I can only think that the Judge allowed the appeal to the HoL because that’s the way to clarify it in law. Then its up to Parliament, lobbied by those who think its wrong to put it right.
David
Do you mean this?
http://www.bailii.org/ew/cases/EWHC/Admin/2007/905.html
Yes. The key issue in the Balen case is explained in para 23. To understand it you must follow the Judge’s earlier discussion of s.50 of the Act. Again this is a sloppy bit of drafting. One would not expect there to be any subjective judgement as to whether a body is a public authority or not. The fact that one needs to go to judicial review instead of the IT at the first hurdle is not likely to be what Parliament intended.
You may be right that a victory over the BBC on Balen might be usable on your EIR case, but the HoL would have to, in effect, correct the drafting to give the IT jurisdiction over the issue of whether a body is a public authority. My bet would be that they uphold the judgement. My hope would be that they comment upon the drafting and point out that it may be in breach of the DIRECTIVE 2003/4/EC Article 4.
David
Have you any idea what the **** South Yorkshire has to so with it? Am I right in thinking that it refers to a decision which casts doubt on the legality of terms that are so obscure or vague that they can only be defined by using other terms?
I think that you are right that there is only a very slim chance that the HoL will find for Sugar, but if they do, the ICO, the IT, and the BBC are going to have to do some thinking. If they even touch on DIRECTIVE 2003/4/EC in the lightest way, that would be major step forward. I am about half way through the directive now.
South Yorkshire was another case where the statute used a vague term, “substantial” that had to be interpreted, just as “purposes other than journalism” must.
I was encouraged to see in the transcript of the court proceedings that even Steven Sugar admitted to the judge that the would have to seek advice!
There was an excellent article –Kyoto is worthless (and you don’t have to be a sceptic to believe that now) – by Dominic Lawson in yesterday’s Independent. He quotes Professor Gwyn Prins’ (Director of the LSE’s Mackinder Centre) observation that the Kyoto Protocol
I mention it here because of Lawson’s comment at the end of his article:
How has a situation developed whereby the BBC appears to encourage its journalists to abandon their traditional objectivity and to actively campaign for the “climate change” lobby?
The Dominic Lawson article I referred to above is found here.
Re#11, Robin
One might almost think that Dominic Lawson is a Harmless Sky reader! His Wikipedia entry shows close family ties with Lord Lawson, Christopher Monckton and George Monbiot. That could make for an interesting Christmas get-together.
No doubt the delegates at Poznan will come up with a form of words that can be presented to the media as progress, just as they did at Bali a year ago. But last night even the BBC (PM – Mark Mardell) broadcast an interview with a German aluminium maker who warned that if the new emissions trading scheme is introduced it would add 30% to his industry’s overheads, leading to migration out of the EU. This was followed by an EU climate change functionary claiming that German industry had cried wolf over this before, but carbon trading had already made them more efficient and the climate more wholesome. Which one sounds convincing?
The recession is already beginning to concentrate minds wonderfully and the objectives set at Bali are even further out of reach now than they were at this time last year.
Although I think it’s clear from his record that Roger Harrabin has, as I suggested in #11, abandoned objectivity to campaign for the “climate change” lobby, I may have got it wrong in this case: his lack of objectivity here is arguably more political than alarmist. His comment “The EU cannot afford to fail on this. Our credibility will be absolutely nil” (referring to Europe’s difficulties in reaching agreement on carbon trading) is essentially about saving face, not saving the world. After all, Professor Prins’s objection to the purchase of offsets is that it is mostly fraudulent and does virtually nothing to reduce global carbon emissions. Moreover, a sainted figure to the climate change lobby – James Hansen – now opposes carbon trading. In an article in the Sunday Times, he is quoted as saying
I’m unsure which is the worst: for the BBC to campaign for a lobbyist or for a political viewpoint.
Re: #14, Robin
The BBC’s impartiality report, From See-Saw to Wagon Wheel has a long section on news and current affairs coverage of the EU. They accept that the strength of public opposition (scepticism?) has been greatly underestimated. But as Harrabin seems to be able to say whatever he pleases about climate change, he may be immune to editorial control in political matters also.
My observation at #14 that Harrabin’s comment was “essentially about saving face, not saving the world” appears to be confirmed by the BBC’s EU leaders focus on climate deal story this morning. A quotation:
Apparently, for the UN delegates, the important thing is the headline rather than the reality. Do they really think that the Chinese and Indian governments would not notice that the EU’s commitments are virtually worthless?
At lunchtime today, Roger Harrabin’s line on the EU climate talks was that they had been a success because the commitment to 20% carbon savings by 2020 had not been abandoned. Was there ever any suggestion that they would be abandoned at this meeting?
Further to the above, the BBC now has a report on the outcome of the European leaders’ efforts to reach a new “climate deal”. President Sarkozy is reported as saying that something “quite historic” had happened. But Stephan Singer of the WWF said:
So even the face saving may not have worked.
My #13 seems not to have been too wide of the mark.
I wonder how the EU line will play at Poznan? Will delegates just gloss over the catastrophe with enthusiastic cries of ‘The Yanks are coming’? If so, that will really please the French.
With apologies, if required, to Brute, JZ and Max.
I see that the BBC’s story has been changed. Now, after quoting the EU Commission President’s comment that Europe’s plans were “the most ambitious proposals anywhere in the world”, the report mentions critics but limits the WWF’s comment (now by Sanjeev Kumar) to:
Not as devastating as the precision of Stephan Singer’s observation reported before (#18) – but damaging nonetheless. However, it seems the spinners are getting to work.
Robin
This is very remeniscent of the Abbess / Harradin afair last summer.
http://ccgi.newbery1.plus.com/blog/?p=76
Do you have a download or printout of the original version?
“A one day event was held in London on January 26 2006, focusing on climate change and
its impact on development. The brainstorm brought together 28 BBC executives and
independent producers, this time including several from BBC News, and 28 policy
experts. It was chaired by Fergal Keane and looked ahead to the next 10 years, to explore
the challenges facing television in covering this issue. Several delegates attended from
developing countries, including Ethiopia, China and Bangladesh.
On September 14 and 15 2006, another one and a half day event took place at Sidney
Sussex College in Cambridge. The theme was ‘interconnectedness’ and there was a
particular focus on Latin America. Many of the BBC participants were drama and
comedy producers, directors and writers. One of the aims of the seminars has been to
persuade non factual programme makers to introduce international themes and stories
into their programmes. As a result of the Kew seminar, the BBC commissioned Howard
Brenton to write a drama on contemporary China. It is now recognised that drama,
comedy and entertainment offer ways of reaching new and wider audiences.”
http://www.ibt.org.uk/all_documents/dialogue/Real%20World%20Brainstorm%20update%2030Jul08.pdf
It doesn’t seem to mention “scientists” – therefore it seems that the BBC were only looking at how to push their “consensus” rather than debate the science. With regard to the “follow up event”, well what can you say. They also seem to want to push their views not only through news programmes but also through drama and the BBCs idea of “comedy”.
Jon
You say:
No, it doesn’t, but the impartiality report does so, quite unequivocally. That is why I want to see the official list of participants. See:
http://ccgi.newbery1.plus.com//?p=109
TonyN – I see.
There are 2 names here that attended. Feargal Keane and Andrew Simms.
http://www.timesonline.co.uk/tol/comment/columnists/rachel_johnson/article3255912.ece
I do understand your dilemma, however as the BBC is a closed shop when it suits its agenda and with billions of telly tax money at its disposal, a very difficult organisation to deal with.
Re: #24, Jon
Many thanks for the link. I am only now catching up with some of the comments of the last few days after a break making preparations for Christmas. I had not seen this before and it is very interesting.
When Andrew Simms spoke to Rachel Johnson he would certainly seem to have been referring to the climate change seminar that I have asked the BBC about. His biog. (here) does not suggest that he is a likely candidate for a seminar of the ‘best scientific experts’ intended to provide an objective overview of the state of the climate debate in order to ensure that the BBC is impartial when reporting on this subject.
The BBC have informed me that the keynote speaker was Lord May, and I now know the name of one out of the 30 non-BBC attendees. There is still a way to go, but thanks for your contribution. There must be many more chance remarks like this one that would probably provide similar clues if only one could track them down.
You may be interested in this post at Bishop Hill’s blog, and one that followed it when I pointed out that Roger Harrabin’s name seemed to have disappeared from some of the pages that he referenced, which is here. Matt Prescott’s gratitude (here) to Jon Plowman, who was head of BBC comedy, is also interesting.