Firstly apologies for the length of the text below but some interesting observations may be drawn from the lack of accountability of the BBC and the use of their interpretation of journalistic freedom. Anyone using the FOI route in the BBC should be interested and this may help you decide how to approach the BBC. The BBC rejected my request and I appealed to the Information Commissioner. We all know the answer to the question I asked but it’s important to keep highlighting to London the dissatisfaction with their service.
Freedom of Information Act 2000 (FOIA)Your FOIA request to the BBC I am writing from the Information Commissioner’s Office to explain the Commissioner’s preliminary conclusion with respect to your complaint. The Commissioner is satisfied that the BBC has correctly handled your request for information under the FOIA. Summary of the correspondence You made a request for the following information: "Please can you advise me how much of BBC Scotland budget was allocated to cover ‘away matches’ in the group stage Europa League matches involving Celtic and Rangers in football season 2018/19? For example how much money was spent on fees to subcontracted staff, hotel and travel expenses including subsistence, overtime, additional broadcasting costs for technical and operational necessities, hiring of equipment or facilities. I do not need the figure broken down by expense type but an overall total sum of money or budget allocated to those matches will suffice.”On 8 March 2019 the BBC responded to your request. The BBC explained that it did not believe that the information was caught by FOIA because it was held for the purposes of ‘art, journalism or literature’.
Some key principles about the operation of FOIA
Although the BBC is listed as a public authority in the FOIA it applies to the BBC only to a limited extent.
The BBC is a public authority for the purposes of the FOIA – “in respect of information held for purposes other than those of journalism, art or literature.”
This is known as the Schedule 1 derogation.
This means that information held for the purposes of journalism, art or literature is not covered by the FOIA but is derogated.
The Commissioner can only consider concerns within the scope of the FOIA. The Commissioner is unable to compel the public authority to provide information outside its obligations under FOIA. The operation of the derogation is explained in more detail below.
How the derogation works
Since the FOIA came into force, the issue on derogation has created considerable litigation about what this means. The High Court, the Court of Appeal and the Supreme Court have explained their views about when the derogation will apply and their decisions are binding on the Commissioner. In summary, if the information is held and relates to ‘output’ then it falls outside FOIA.
In 2012, the Supreme Court in Sugar (Deceased) v British Broadcasting Corporation and another  UKSC 4 gave a clear definition of what the phrase ‘journalism, art or literature’ means in FOIA and what types of information it will cover; the Supreme Court found that, “…the composite expression ‘journalism, art or literature’ seems to be intended to cover the whole of the BBC’s output in its mission (under article 5 of its Royal Charter) to inform, educate and entertain the public. On that comprehensive approach the purposes of journalism, art or literature would be, quite simply, the purposes of the BBC’s entire output to the public.” (Lord Walker at para 70).
In relation to journalism the Supreme Court accepted the Information Tribunal’s definition of journalism as comprising three elements:
• The first is the collecting or gathering, writing and verifying of materials for publication.
• The second is editorial. This involves the exercise of judgement on issues such as:
* the selection, prioritisation and timing of matters for broadcast
* the analysis of, and review of individual programmes; and
* the provision of context and background to such programmes.
• The third element is the maintenance and enhancement of the standards and quality of journalism (particularly with respect to accuracy, balance and completeness). This may involve the training and development of individual journalists, the mentoring of less experienced journalists by more experienced colleagues, professional supervision and guidance, and reviews of the standards and quality of particular areas of programme making.”
Also the Supreme Court found (in a 4:1 majority) that if the information is held by the BBC to any significant degree for the relevant purposes (i.e. journalism, art, literature) it is exempt from production under FOIA, even if the information is also held for other purposes.
Therefore provided there is a relationship between the information and one of the purposes listed in Part VI of Schedule 1 – which are to be read to mean ‘output’ – then the information is derogated.
The information relevant to the request need not be journalistic, artistic or literary material itself. All that must be evidenced is that the information requested has a relationship with the BBC’s output.
Is there a relationship between the information requested and ‘output’? The information you have requested, relating to the budget for coverage of away matches is information held for the purpose of 'journalism, art or literature'. This is because this information is linked to the BBC’s output, in particular its decisions regarding how much of its budget to allocate to cover away matches and therefore what information is broadcast in this area. As a result I am satisfied that in this case the Commissioner has no jurisdiction in this matter and therefore no statutory power to order disclosure. You may wish to read some decision notices regarding the application of the derogation at the link below by selecting the BBC under the ‘Authority’ tab: http://search.ico.org.uk/ico/search/decisionnotice The Commissioner’s preliminary conclusion in this case As a preliminary conclusion, the Commissioner is satisfied that the requested information is derogated and therefore the BBC is not obliged to comply with Parts I to V of the FOIA with respect to this request. Progression of this case and actions required Please consider the following options: 1. It may be case that you are prepared to withdraw this complaint at this point given the information above. This does not mean that you are satisfied with the situation, but that you understand that any decision notice you will receive will be highly likely to uphold the position of the BBC and find against you. Should you agree to withdraw your complaint without a decision notice you would not then be able to appeal this case to the First-tier Tribunal (Information Rights).2. The alternative is that you want to proceed to a decision notice and as explained above it is highly likely to uphold the position of the BBC and find against you. Both parties will however have a right of appeal at the First-tier Tribunal (Information Rights) where there are grounds to do so. If you require a decision notice I would ask you to provide your arguments about why you disagree with the preliminary view that is outlined above and encourage you to read through the material that I have referenced.