Subject: FS50302135: BBC[Ref. FS50302135]
7th May 2010
Case Reference Number FS50302135
Dear Mr Turner
Further to our previous correspondence regarding your complaint against the BBC, I am writing to inform you that your case has now been allocated the BBC team for investigation.
You made your request to the BBC on 10 March 2010 for the following information:
"Under the Freedom of Information Act 2000, I would like to request the following information about BBC Coventry and Warwickshire:
a) the annual budgets of the station since it began in 2005
b) the annual external advertising budgets (ie paid advertising for the BBC C and W programmes outside of the BBC broadcasts) for the station over the same time period."
The BBC responded on 17 March 2010 and has relied on the 'derogation' to withhold the information you requested. Part VI of Schedule 1 of the Act states that the BBC is a public authority 'in respect of information held for purposes other than journalism, art and literature'. This is commonly referred to as the Schedule 1 derogation.
The scope of the derogation has recently been considered by the High Court in the cases of the BBC vs. Steven Sugar and The Information Commissioner (EW2349) and the BBC vs. the Information Commissioner (EW2348). In both decisions Mr Justice Irwin found:
"My conclusion is that the words in the Schedule mean the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes. The words do not mean that the information is disclosable if it is held for purposes distinct from journalism, art or literature, whilst it is also held to any significant extent for those purposes. If the information is held for mixed purposes, including to any significant extent the purposes listed in the Schedule or one of them, then the information is not disclosable." (para 65 EA2349 and para 73 EW2348).
The Commissioner interprets the phrase "to any significant extent", when taken in the context of the judgement as a whole, to mean that where the requested information is held to a more than trivial or insignificant extent for journalistic, artistic or literary purposes, the BBC will not be obliged to comply with Parts I to V of the Act. This is the case even if the information is also held for other purposes.
Thus, provided there is a link between the information and one of the purposes listed in Schedule 1, then the information is derogated and not disclosable. This approach is supported by Mr Justice Irwin's comments on the link between operational information, such as programme costs and budgets, and creative output:
"It seems to me difficult to say that information held for 'operational' purposes is not held for the 'purposes of journalism, art or literature." (para 87)
It is not necessary to consider whether the information itself is journalistic, artistic or literary but rather whether it is held for one of these purposes. It is also not necessary to identify for which purpose(s) the information is held: it is sufficient to simply identify the link between the information requested and one of the derogated purposes.
The two High Court decisions related to information falling within the following categories:
× Salaries of presenters / talent
× Total staff costs of programmes
× Programme budgets
× Programme costs
× Payments to other production companies for programmes
× Payments to secure coverage of sporting events
× Content of programmes / coverage of issues within programmes
In relation to all of the above Mr Justice Irwin found that the information was held for the purpose of journalism, art or literature and that therefore the BBC did not have to disclose the requested information.
The information you have requested can be categorised as falling within the category of programme costs as it is information regarding the budget of a programme or station and the cost of advertising such a programme or station.
It is my view that the information you have requested falls within the definition of information held for the purpose of journalism, art or literature as it is a request for information about programme costs. Although the information might also be held for other purposes as the request is for information held for one of the derogated purposes the BBC do not have to provide the information you have requested.
In light of the above I will be recommending to the Commissioner that he upholds the BBC's handling of your request.
I would appreciate if you could confirm to me whether you wish to continue with your complaint or if you now wish to withdraw your complaint. I would be grateful if you could respond as soon as possible and in any case no later than ten working days from receipt of this email / letter. If I do not hear from you within this timeframe I will consider the complaint withdrawn.
Yours sincerely
Rachael Cragg
FOI Team Leader BBC
Information Commissioner's Office
The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
If you are not the intended recipient of this email (and any attachment), please inform the sender by return email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted.
Communication by internet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal address to allow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the Information Commissioner's Office for reasons of security and for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law.
The Information Commissioner's Office cannot guarantee that this message or any attachment is virus free or has not been intercepted and amended. You should perform your own virus checks.
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
