David Keighley v The Information Commissioner & Anor

Whether information is “held” by a public authority

Section 58 of the FOIA governs the Tribunal’s jurisdictional remit. The Tribunal must decide whether the notice against which the appeal is brought is “in accordance with law” or, if it involved an exercise of discretion, whether the IC “ought to have exercised his discretion differently” (FOIA s.58(1)).

Insofar as is relevant to this appeal, the Tribunal in Guardian Newspapers and Brooke observed as follows (at §14):

“(1)

The tribunal’s task is not a judicial review of the Commissioner’s decision on the principles that would be followed by the Administrative Court in carrying out a judicial review of a decision by a public authority (contrast the jurisdiction relating to national security certificates under section 60(3), which is expressly on a judicial review basis). The statutory jurisdiction under section 58 is substantially wider...

(3)

In considering whether the Commissioner’s notice is in accordance with the law, the tribunal must consider whether (in the present context) the provisions of FOIA have been correctly applied. The tribunal is not bound by the Commissioner’s views or findings but will arrive at its own view. In doing so it will give such weight to the Commissioner’s views and findings as it thinks fit in the particular circumstances...”

(7)

While it is not necessary for the purposes of the present case to consider the situation where the notice involved an exercise of discretion by the Commissioner, we incline to the view that in such a case the tribunal must form its own view on how the discretion ought to have been exercised...” (emphasis added).

The Commissioner investigated the matter and held that at part one and two of the request, the information is held for the purposes of ‘journalism, art or literature’ and does not fall inside the FOIA. The Commissioner accepted, on the balance of probabilities, that the BBC does not hold any information relating to part three of the request. The Commissioner reached her decision on the following grounds:

The Appellant’s Grounds of Appeal argued that the Commissioner erred in law in concluding that the information sought in parts one and two of the Request is held for the purposes of journalism as interpreted by the Supreme Court in Sugar (No 2). The Appellant stated as follows:

“i)

The Commissioner erred in law in her application of the tests for ambit of the derogation and incorrectly applied the test in Sugar (No 2);

ii)

The Commissioner afforded undue deference to the BBC’s submission that the relevant information fell within the definition of “journalism”, failed to adequately scrutinise the issue and thereby fetter her discretion.”

Further, the Appellant argued that the Commissioner unlawfully accepted the BBC’s submissions that it did not hold information within the scope of part three of the Request.

The Commissioner maintained her position as outlined in the DN and resisted the appeal. The Commissioner submitted that the information in Parts 1 and 2 of the Request were within the journalism derogation and therefore not within the scope of the FOIA [see §61]. The Commissioner noted that the Appellant had incorrectly adopted language associated with judicial review proceedings to describe the alleged errors, which was outside of the Tribunal’s appellate jurisdiction [see §48]. The Commissioner contended that the position with respect to whether the BBC “held” information relevant to Part 3 of the Request was “less clear cut”, and the Tribunal would be assisted by receiving further information or evidence from the BBC in this respect [see §62].

The Appellant lodged a reply to the Commissioner’s response on 20 December 2021. The Appellant sought additional disclosure from the BBC following the issues raised by the Commissioner in her response with respect to part 3 of the request as follows:

“First, as to disclosure, the issues requiring response by way of Reply are:

(1)

Given the First Respondent’s (“Commissioner”) revised position in respect of part 3 of the Appellant’s request (concerning Professor Sambrook) disclosure is requested from the IC of the following:

“(a)

any notes of the conversation between the Commissioner and the BBC dated 3 September 2021 recorded in footnote 3 and paragraph 57 of the Commissioner’s Response;

(b)

a copy of the ‘Terms of Reference’ referred to at paragraph 56 of the IC’s response since they are plainly germane to the matters at issue to request 3 (and there having been no order, or indeed application, made under rule 14 of the Tribunal rules concerning the prevention of disclosure or publication of documents preventing disclosure of the same).

(2)

In light of the Commissioner’s conclusions at paragraph 59 of their Response, it is requested that the BBC now makes the various searches therein requested of the email accounts, both personal and work, of the relevant senior News staff member and:

(a)

confirms whether such records exist and if so to list the same; and

(b)

discloses copies of all relevant communications for consideration by the Tribunal in same manner described by the IC at paragraph 56 of her Response.”

The Appellant rejected the contention that the Tribunal did not have jurisdiction to hear the appeal based on the Appellant’s use of judicial review terminology as follows:

“The Appellant contends that the Tribunal has jurisdiction to determine this appeal and it will be asked to apply, on the appeal, the unvarnished statutory tests under FOIA.”

The BBC responded to the appeal on the 17 January 2022. In their response, the BBC invited the Tribunal to uphold the Commissioner’s DN and resisted the appeal. The BBC stated that further searches and inquiries requested by the Commissioner in relation to part 3 of the Appellant’s request had been conducted, which confirmed that, no relevant information was held and any further searches would be inappropriate and disproportionate.

The Appellant replied to the BBC on 4 February 2022. The Appellant refuted BBC’s reliance on the principles set out in Sugar in relation to the archived material. The Appellant contended that the appropriate test can be found at §66-67 of Lord Phillips PSC judgment, which states that archived material would not, as such, fall within the protection afforded by the definition of journalism for the purposes of the exception. Further, the Appellant averred that the material held by the BBC does not satisfy Lord Phillips’ pre condition and thus it does not fall into the exception.

The Appellant lodged a skeleton argument on the 28 of April. The Appellant advanced three grounds. The Appellant’s first ground concerned the error of law. In this ground of appeal the Appellant proffered three arguments. Firstly, that the information sought in re quests 1 and 2 do not fall with the journalism exception. Secondly, the decision in Sugar deals with a different question and can be distinguished from the present requests; and that the information requested was (and/or now is) archival and therefore could not attract the protection of journalism exemption.

The Appellant’s second ground stated that the Commissioner fettered her discretion in determining the decision as she did. The Appellant averred that the appeal will amount to a rehearsing of the matters which were before the Commissioner. In the Appellant’s remaining ground, it was contended that in relation to the third part of the request, the conclusion reached was irrational, against the weight of evidence and deferential to the accounts given by the BBC. The Appellant invited the Tribunal to set aside the decision of the Commissioner and order the disclosure of the requested information.

In response to the Appellant’s first ground, the BBC argued that there has been no error of law, the reasoning behind this is fivefold. Firstly, the BBC stated that there has been no misdirection or misinterpretation of law by the Commissioner regarding the principles set out in Sugar. Secondly, the Appellant has erred in his selective reliance on Lord Neuberger MR’s statement at §55 regarding the relatively narrow consideration to be afforded to the question of whether information is held for the purposes of journalism. In addition, the Appellant’s argument in relation to the public interest of the journalism derogation is misconceived. The BBC referred to the Tribunal’s decision in Bradshaw for the purposes of refuting the Appellant’s contention.

In relation to the Appellant’s argument which considers “Lord Phillips precondition”, the BBC argued that this argument is without merit and referred the Appellant to the immediate object of editorial training and the reviewing of editorial standards which, the BBC contended, is of an ongoing nature as held by Lord Phillips at §67. Finally, the BBC contended that there is no basis on which the Tribunal can otherwise conclude that the Commissioner erred in reaching the conclusions provided in her DN.

The BBC submitted, in response the Appellant’s second ground, that the DN is in accordance with the law and the Commissioner correctly exercised her discretion in deciding that the derogation in Part VI of Schedule 1 applied. The Appellant challenged the DN on rationality grounds. The BBC rejected this contention and stated that the Commissioner did not accept the BBC’s account without taking all material considerations into account or making further inquiries. Furthermore, the BBC challenged the Appellant’s argument on the grounds that the Commissioner pressed the BBC during the course of their investigation to reconsider whether the BBC held the requested information. The BBC invited the Tribunal to dismiss the appeal and uphold the DN

By agreement between the Appellant and the Second Respondent the focus of the second hearing was on the evidence submitted by the BBC.

In response to the Tribunal’s directions the BBC submitted two witness statements and confidential exhibits. The witness statement of Mr David Jordan was considered in closed session. The second witness statement was provided by Brigit Morris who is employed by the Second Respondent as a lawyer. Ms. Morris advises the Second Respondent on Freedom of Information and Data Protection. Her evidence to the Tribunal was by virtue of a witness statement.

In her witness statement Ms. Morris provided material information on the following issues:

The Tribunal refer in particular to material detailed extracts from Ms Morris’ witness statement which are shown below. The paragraph numbers are taken from her witness statement: This information was divided into Issues 1 – 3 respectively.

Audience complaints about BBC output can be made to the BBC via email, phone or post. The ‘BBC’s Complaints Framework’1 sets out a two-stage process.

First, the Audience Services team (‘Audience Services’) are responsible for managing and adjudicating complaints received by the BBC (i.e. ‘Stage 1’ complaints). Second, if the outcome of a Stage 1 complaint is appealed, the complaints are adjudicated by the Executive Complaints Unit (the ‘ECU’) (i.e. ‘Stage 2’ complaints). Stage 2 is the final avenue of appeal for editorial complaints before a complaint can be raised with the broadcasting regulator, Ofcom.

Audience Services, who manage and adjudicate Stage 1 complaints, comprises BBC staff as well as workers from a third-party company, Capita, who are contracted to work on behalf of the BBC. Complaints managed by Capita are “held on behalf of the 88 C” for the purposes of the Freedom of Information Act (the ‘FOl Act’).

Audience Services hold editorial complaints centrally in a Case Management Record (‘CRM’) system. The CRM is hosted by Capita. The BBC receives some audience complaints about BBC output that are addressed to the Director-General or Chairman of the BBC that will not be handled by Audience Services. These will be passed to the Audience Services team by staff in the Director-General or Chairman’s Office and fed into the CRM by Audience Services staff.

The spreadsheet of impartiality complaints provided to the Information Commissioner for their review, and later to the Tribunal, were extracted from the CRM.

Webform based complaints (complaints submitted online) are stored in ‘Real Time’. This means they are uploaded automatically to the CRM as they are received. Letter complaints are scanned and uploaded to the CRM as they are received by Capita; this may be on the date of receipt or a day or two after, depending on staff availability. Phone based complaints are transcribed by the agent who takes the complaint call and uploaded at the same time as letter complaints.

The retention period for complaints held in the CRM is different depending on the progress of a complaint. Stage 1 complaints are deleted two years from the date the complaint is closed. Stage 2 complaints are deleted three years from the date the complaint is closed. This is documented in the BBC’s Corporate Retention Policy. The team also holds a separate reporting database where all complaints are anonymised after two or three years (depending on the aforementioned retention periods), so the team can perform historical reporting of complaint themes for ad hoc reviews within the BBC.

I understand from senior representatives in Audience Services that approximately 100 Capita staff and approximately 80 BBC staff have access to the CRM. Access is permission based, so, for example, only ECU staff can see Stage 2 complaints in the CRM as they are solely responsible for adjudicating those complaints (I explain this further in the section below).

The CRM captures information including: (i) date of complaint; (ii) date the complaint was uploaded to the system; (iii) relevant editorial standards (i.e. impartiality); (iv) whether the complaint relates to a specific programme; (v) nature or content of the complaint; and (vi) the name and contact details of the complainant (the personal data of the complainants has been removed from the copy provided to the Tribunal). This information is captured in the CRM to manage complaint responses to individuals, to track patterns in complaints for editorial reviews, and to monitor the number of complaints received about specific programmes. Programmes that receive a high volume of complaints are ordinarily published on the BBC’s complaints website.

The ECU is the appeals complaints body for adjudicating editorial complaints in the BBC. They are responsible for adjudicating Stage 2 complaints (i.e. the final stage of appeal for editorial complaints before a complaint can be raised with the broadcasting regulator, Ofcom). The ECU is comprised of seven members of BBC staff who are experienced editorial advisors and an eighth team member who is an administrator.

Only the eight permanent members of the ECU have access to this area of the CRM. Additional BBC workers are, from time to time, added to the system on an as needs-basis. BBC staff from BBC News and Current Affairs and/or senior editorial advisors can make direct requests to a member of the ECU, via email, for copies of complaints for specific editorial content reviews.

Based on information provided to me by Audience Services, the following is a list of the ways in which complaints that are stored in the Audience Services section of the CRM are requested, extracted, and used for editorial reviews of output:

When Stage I complaints are appealed to the ECU, the ECU will send a response to the complainant and publish a summary of the complaint and the ECU’s response on the BBC’s complaints website.

I understand that BBC staff, from time to time, request more detailed information about these complaints from the ECU for editorial reviews of output. I understand this is an ad hoc process that usually involves requests to ECU team members made by email or phone.

Such reviews may be specific to a single piece of output, such as where a complaint is received about an online news article that requires the article to be immediately amended for editorial or legal reasons.

Editorial complaints are also used for longer term, more substantive editorial reviews.

For example, there are planned editorial reviews that arose from the Serota Review and Impartiality Plan, April 2022 (the ‘Serota Review’). That Review was commissioned by the BBC Board after the publication of the Dyson Report into the circumstances surrounding the 1995 Panorama Interview with Diana, Princess of Wales. The Review sought to:

The authors of the Serota Review recommended the implementation of thematic and content reviews of BBC output.

It has been confirmed to me by the two senior editorial representatives who are leading on content and thematic reviews, that editorial complaints will be reviewed with a mind to improving audience perceptions of BBC content, and where necessary, remedying any issues in content from an editorial standards perspective.

To that end, the Serota Review’s Action Plan states that such review ‘will consider complaints and the broader public debate’4 in that work.

Aside from these types of ad hoc review, the BBC does not have a specific policy document that outlines how editorial complaints are used for journalistic review.

Based on the information supplied to me by senior staff in BBC News and editorial standards when I: (i) conducted the Internal Review of the BBC’s decision (dated September 2020); (ii) drafted the responses to the Information Commissioner regarding the Appellant’s complaint (dated 13 August 2021 and 10 December 2021); and (iii) advised on the BBC’s defence to the Appellant’s appeal in the First-Tier (Information Rights) Tribunal (dated 17 January 2022), I can confirm that Professor Sambrook was appointed directly without recourse to external recruitment. Further to this, I understand that no records were generated relevant to Parts 3(a) to (e) and (g) of the Appellant’s Request for Information as Professor Sambrook was appointed verbally and was not paid for his services.

The Appellant made a request for an internal review (‘Internal Review’) of the BBC’s response on 24 August 2020. I undertook the Internal Review as I had not been involved in the original response.

On 3 September 2020, and again on 10 September 2020, I liaised with the two senior BBC representatives who took the decision (verbally), to appoint Professor Richard Sambrook to conduct the 2020 Social Media Review; Mr David Jordan, Director of Editorial Policy and Standards and Ms Fran Unsworth, then Director of News. I also liaised with their administrative staff.

Given the fact that Mr Jordan and Ms Unworth’s decision to appoint Professor Sambrook was taken verbally, no searches were conducted at the Internal Review stage for relevant records as this appeared unnecessary and disproportionate.

The Freedom of Information Code of Practice (the ‘Code’) provides the following explanation for public authorities as to when and how searches should be conducted:

“Public authorities need to search for requested information in order to communicate to the applicant whether the information they are seeking is held or not held by that public authority. These searches should be conducted in a reasonable and intelligent way based on an understanding of how the public authority manages its records. Public authorities should concentrate their efforts on areas most likely to hold the requested information. If a reasonable search in the areas most likely to hold the requested information does not reveal the information sought, the public authority may consider that on the balance of probabilities the information is not held.”

The Code makes clear that searches should be conducted “in order to” communicate to the applicant whether the requested information is held. In this case, at internal review, because of the way the decision to appoint Professor Sambrook was made, in the BBC’s view, it was not necessary to conduct searches “in order to” communicate to the applicant that no records were held relevant to his request.

I sent the internal review to the Appellant on 30 September 2020. I understand the Appellant subsequently contacted the Information Commissioner to raise a concern about the BBC’s handling of the Request.

44, In its subsequent letter to the BBC of 1 July 2021, the Information Commissioner asked the BBC questions relating to the BBC’s adherence to section 1 of the FOI Act. These questions were:

“What searches have been carried out to check no information was held within the scope of the request and why would these searches have been likely to retrieve any relevant information?

Please describe thoroughly any searches of relevant paper/electronic records and include details of any staff consultations.

If searches included electronic data, which search terms were used and please explain whether the search included information held locally on personal computers used by key officials (including laptop computers) and on networked resources and emails.

If no searches or inadequate searches were done at the time, please rectify this now and let me know what you have done.

If the information were held would it be held as manual or electronic records?

Was any recorded information ever held relevant to the scope of the complainant’s request but deleted/destroyed?

If recorded information was held but is no longer held, when did the BBC cease to retain this information?

Does the BBC have a record of the document’s destruction?

What does the 88 C’s formal records management policy say about the retention and deletion of records of this type? If there is no relevant policy, can the BBC describe the way in which it has handled comparable records of a similar age?

If the information is electronic data which has been deleted, might copies have been made and held in other locations?

Is there a business purpose for which the requested information should be held? If so what is this purpose?

Are there any statutoty requirements upon the BBC to retain the requested information?”

In response to these questions, on 27 July 2021, I emailed the then Director of BBC News, Ms Unsworth, to ask her to confirm that, consistent with my understanding of the nature of Professor Sambrook’s appointment, no recorded information was held. I asked her at this time to complete searches of email and other information from 2020 that may be relevant by reference to search terms “Richard”, “Sambrook’ and “Social Media”.

I received confirmation on the same day from Ms Unsworth’s office that searches of Ms Unsworth’s two BBC email accounts had been conducted. This did not generate any relevant records.

Also on 27 July 2021, I emailed the Director of Editorial Standards and Policy, Mr David Jordan.

I received confirmation from Mr Jordan via email on 12 August 2021 that he also held no email records relevant to the Request.

The fact that no records were held was communicated to the Information Commissioner in the BBC’s response dated 13 August 2021:

“On receipt of the ICC’s complaint, / again contacted senior representatives from these teams who confirmed that searches need not be conducted as the request for information extends to material that would not be held by the BBC as the framing of the request misunderstands the way Mr Sambrook was appointed. In the interests of completeness however, email searches of a senior News staff member involved in Mr Sambrook’s appointment was completed, by reference to Mr Sambrook’s name, and no relevant information was produced.

To that end, it is important to note that while the BBC has a Records Management Policy and Corporate Retention Schedule which identify minimum retention periods for HR documents such as terms of engagement, such records were not created here as explained in our internal review, and so do not apply.”

I received a phone call from Information Commissioner casework officer, Ms Janine Gregory on 3 September 2021 about this matter. In response to Ms Gregory’s questions about what searches the BBC had conducted, I explained that the BBC had conducted email searches and that to undertake any further searches would be unnecessary given the way in which Professor Sambrook was appointed.

For the Tribunal’s information, the BBC did not determine it was necessary and proportionate to search the personal email accounts of the two senior representatives who made the decision to appoint Professor Sambrook. First, it was confirmed to me that one of the two does not have a personal email address. Second, it was confirmed to me that the other member of staff did not, and would not, use their personal email for BBC work. Third, the BBC’s Acceptable Use of Information Systems Policy stipulates that:

“You must not use a personal email account for your 880 work. Secure options for accessing your BBC email on the go or at home are available.”

Therefore, unless the BBC had cause to request access to a member of staff’s personal email, searching personal emails would be disproportionate and in the current circumstances, manifestly unnecessary.

For the Tribunal’s information, the BBC has a Guide to processing Freedom of Information requests which includes information on how to conduct searches. This is available to all staff on BBC intranet.

I also wish to address any potential concerns the Tribunal may have regarding the BBC’s position that the Terms of Reference for the Social Media Review (which was to be conducted by Professor Sambrook following his appointment) are not within the scope of the Request. The relevant parts of the Appellant’s Request are for copies of:

“e.

his letter of appointment and statement of contractual employment terms or equivalent if he was appointed on a self-employed or consultancy basis.
g. Professor Sambrook’s job description with the 880.”

In the BBC’s submission to the Information Commissioner dated 13 August 2021, I explained that:

In subsequent correspondence from a lawyer acting for the Information Commissioner, Ms Louisa Lansell, dated 23 November 2021, the Information Commissioner wrote that the “the Tribunal are likely to be in determining the of 3 of the Appellant’s by viewing the Terms of Reference referred to in the BBC’s letter to the Commissioner 13 August 2021”.

In responding to that email on 10 December 2021, the BBC provided the Information Commissioner with a copy of the Terms of Reference accompanied by a letter dated the day which explained that:

“The ordinary meaning of (e) ‘letter of appointment of contractual employment terms of equivalent’ cannot be taken to refer to a terms of reference which to the way the project was framed,than to an individual’s terms of engagement. Were the document to fall within (e) one would to employment terms such length of engagement. These do not in the Terms of Reference.

A and ordinary understanding of (g) job description’ would expect to include the responsibilities, activities, qualifications and skills required for a role. These do not appear.”

Notwithstanding this, the BBC disclosed the Terms of Reference to the Tribunal in order to the Tribunal. In doing so, the BBC explained its position that the Terms of Reference relate solely to the or content of the inquiry (i.e. the Social Media Review itself), rather than to the employment conditions under which a person was asked to undertake the inquiry.

The Tribunal asked the BBC to provide more information about what, if any, information relevant to Part iii(f) of the Appellant’s Request is held by the BBC.

Part iii(f) of the Request sought copies of:

“all communications between the BBC, its recruitment agency (if used) and Cardiff University relating to the appointment.”

understand that no information relevant to Part iii(f) of the Request is held by the BBC. This has been our position since the Internal Review stage.

I understand the BBC paid a small fee to the researchers who worked with Professor Sambrook at the Cardiff University School of Journalism. This was explained to the Appellant in the BBC’s Internal Review response which was also provided to the Information Commissioner and to the Tribunal.

In my Internal Review of the BBC’s original FOI response, I explain that:

“Professor Sambrook elected to undertake the appointment for no fee but worked with researchers at Cardiff University who were paid a small fee by the BBC for their expertise in assisting Professor Sambrook.”

For the benefit of the Tribunal, and in the spirit of cooperation, I attach in Confidential Exhibit 03 an invoice recording that this fee was paid to Professor Sambrook as a facilitator, which was to be on-paid in full to the University of Cardiff However, the BBC’s position remains that this invoice not fall within the scope of the it is not a ‘communication relating to the appointment’. It is instead a proof of payment to who Professor Sambrook with his substantive role (following his appointment).

For completeness, I note also that the witness of David Jordan exhibits minutes from a meeting of Executive’s Editorial and Complaints Committee. For the avoidance of doubt, the BBC’s position is that this document could not reasonably be construed falling within the scope of the Request. This simply notes the decision that had already been taken. It does not relate to his appointment or “recruitment” (the term used in the Request), nor does it relate to payments made to Professor Sambrook or his job description. If such a broad approach was taken to the word “relate” it would mean that every document produced by, or about, Professor Sambrook during the entire review exercise would fall within the request, which was clearly not the intention”.

Some parts of the above witness statement (paragraphs 19-25) were not provided to the Appellant but were considered by the Tribunal in closed session. Following the closed session the BBC agreed to provide an open summary of the closed witness statements. This stated as follows;

“Open overview of closed paragraphs 19-25 of Brigit Morris’ witness statement

1.

A daily email is sent to the Head of Journalism each weekday morning reporting the main overnight complaints issues specifically related to BBC News.

2.

A monthly report on editorial complaints is sent to two senior BBC editorial committees. The first reports into the BBC Board, and the second is a committee of the BBC Board. Complaints issues and editorial learnings are discussed at these monthly committee sessions. The expectation is that those attending the meetings will note those complaints which have lessons for their own Divisions and discuss them appropriately within the Division.

3.

In addition, the Audience Services team provide a monthly overview of common complaint issues related to News to a senior editorial adviser in News and attend weekly meetings with the Director of News to discuss complaints issues in the context of broader audience research. Reports are also run on complaints that carry reputational risk and a summary of complaints on key thematic topics are also maintained which teams in News can draw upon.

Open overview of paragraphs 22 and 23 of David Jordan’s closed witness statement 4. Audience complaints are integral in understanding audience reaction to BBC content. Where editorial complaints are upheld, this provides lessons learnt to the programme areas and it is expected that action will be taken about serious editorial breaches at a divisional level. It can also lead to changes in editorial standards and practice. Some actions taken with respect to upheld editorial complaints are made public.

5.

Upheld and resolved editorial complaints are reported regularly to a committee that reports into the BBC Board. A summary of these complaints is then also reported to another committee, which is a committee of the BBC Board. Actions taken will be reported and discussed as appropriate. The analysis of complaints also form part of content and programme reviews. Disclosing editorial complaints of the kind requested by the Appellant would be incompatible with the BBC’s journalistic mission to produce independent and impartial output. The BBC must have a safe space in which to critique its output, which in this case is by reference to complaints.”

Subsequent to the submission of Ms Morris’ witness statement the BBC submitted a further witness statement on 18 November 2022. Despite the position maintained in Ms Morris’ statement that the BBC held no information in relation to Part 3 of the request the BBC conducted some new searches on 10 November 2022 at the instigation of a newly appointed BBC lawyer who had formed the opinion that the initial searches may have been incomplete. The lawyer, Ishani Jayaweera, provided evidence about these 'new' electronic searches of email boxes. This review identified six documents as potentially responsive to Part 3 of the Request. These documents were provided to the Appellant with some redactions for personal data. The Tribunal acknowledges that the Appellant has therefore received some further information in response to Part 3. However, this was provided as late as 18 November 2022, some two and half years after the BBC’s initial response to the request and only days before the resumed hearing in this appeal.

The Appellant stated that the principal development since the matter was adjourned part-heard is the filing by the BBC of the witness statement of Brigit Morris dated 9 June 2022. The Appellant referred to para 18 of her statement where she explains that she has given the Tribunal, but not the Appellant, ‘a list of the ways in which complaints that are stored in the Audience Services section of the CRM [which stands for Case Management Record] are requested, extracted, and used for editorial reviews of output.’

The Appellant submitted that this is unacceptable. How the BBC uses complaints is an important (and material – our emphasis) issue in considering whether it is really right to say that they constitute (and all constitute, and all still constitute even at today’s date) ‘information held for purposes […] of journalism’, as that expression is properly to be understood. Yet the BBC proposes that the Tribunal should consider this issue on the basis of information that is not to be revealed to the Appellant. As the Supreme Court noted in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 730 at para 2,

The Appellant stated that it is true, of course, that the GRC Rules 2009 allow at rule 14(6) that the Tribunal may ‘give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons.’ But this exceptional course requires an application in writing (see Practice Note—Closed Material in Information Rights Cases), and the test is a necessity.

In the present case, the Appellant averred that there has been no application, and it is anyway not at all obvious why it is necessary to withhold from the Appellant (still less to withhold from his legal representatives: see rule 11(4)) the ‘ways in which complaints that are stored in the Audience Services section of the CRM are requested, extracted, and used for editorial reviews of output’. The Appellant asked the Tribunal to direct that the material to which Ms Morris refers at para 18, if it has been seen by the Tribunal, be disclosed at once to the Appellant. (If it has not been seen by the Tribunal, the Appellant submitted that the BBC should be required to elect between providing it to the Tribunal and all parties or not relying on it at all.)

Secondly, the Appellant contended that his request in relation to Professor Sandbrook’s appointment was for ‘details and all relevant documents […] relating to the decision to recruit a person to fulfil the role now occupied by Professor Richard Sandbrook’. The request went on, in paras 3(a) to (g), to provide an explicitly non-exclusive (‘including but not limited to’) list of documents. Ms Morris’s statement, however, is limited to addressing (at para 36) that list, as if that were all that the Appellant had requested: ‘I understand that no records were generated relevant to Parts 3(a) to (e) and (g) of the Appellant’s Request for Information as Professor Sambrook was appointed verbally and was not paid for his services.’ (Ms Morris goes on to explain that some records were generated relevant to para 3(f).)

In these circumstances, quite apart from the issue of whether the BBC has conducted an adequate search for documents within paras 3(a) to (g) of the Appellant’s list, the Appellant argued that it appears that the BBC has not searched generally for ‘all relevant documents […] relating to the decision to recruit Professor Sandbrook. The Appellant contended it is not credible that an important decision in an organisation such as the BBC generated not a single record.

Thirdly, the Appellant drew the Tribunal’s attention that one of the decisions on which the BBC relies, namely Keighley v Information Commissioner (EA/2021/0220) (see para 33 of the BBC’s skeleton argument dated 29 April 2022), which is now under appeal to the Upper Tribunal, pursuant to permission granted by the Upper Tribunal on 31 October 2022. The issue in the appeal is the width of the concept of ‘information held for purposes […] of journalism’.

Finally, it may be noted that the Upper Tribunal (Lands Chamber) (Fancourt J) has recently considered the question of the date at which the First-tier Tribunal (Property Chamber), which like the present Tribunal exercises a de novo jurisdiction, should assess the issue before it: London Borough of Waltham Forest v Hussain [2022] UKUP 241 (LC). In that case, the issue was whether the appellants were fit and proper persons to be granted certain licences under housing legislation. The local authority, as the primary decision maker, decided not. The FTT, expressly considering the issue as at the date of its decision, and taking into account developments since the local authority had taken its decision, disagreed and ordered that licences should be granted. The local authority contended before the Upper Tribunal that this had been an error. The Upper Tribunal disagreed. Fancourt J stated (at para 66) that:

The present context, it was submitted, is analogous. The statutory question is not whether the notice against which the appeal is brought was not in accordance with the law, but whether it ‘is’ in accordance with the law and the reality of the appeal is that the Tribunal will either endorse the conclusion that the relevant information does not fall within the scope of the Act, or decide that it does and order it to be communicated to the Appellant.

It follows, the Appellant submitted, that the date at which the Tribunal should consider the nature of the information, the disclosure of which he seeks, is the date of this hearing. This is relevant when it comes to parts 1 and 2 of the request: the issue is not whether the relevant information did at some previous time constitute ‘information held for purposes […] of journalism’ but whether that is what it is now.

The Second Respondent provided an updated skeleton argument on 18 November 2022 in relation to the following:

The Second Respondent stated that There is a two-stage process for complaints. The Audience Services team are responsible for managing and adjudicating complaints received by the BBC (“Stage 1” complaints). If the outcome of a Stage 1 complaint is appealed, the complaints are adjudicated by the Executive Complaints Unit (“ECU”) (“Stage 2” complaints). The Second Respondent outlined that Audience Services hold editorial complaints centrally in a Case Management Record (“CRM”) system. The spreadsheet of impartiality complaints provided to the IC for her review, and later to the Tribunal, were extracted from the CRM.

The Second Respondent detailed that Stage 2 complaints are also stored in an access-stored section of the CRM. This means that some complaints will appear twice in different parts of the CRM depending on whether the Stage 1 decision was appealed. Further, the CRM captures information including (i) the date of complaint; (ii) the date the complaint was uploaded to the system; (iii) relevant editorial standards (i.e. impartiality); (iv) whether the complaint relates to a specific programme; (v) nature or content of the complaint; and (vi) the name and contact details of the complainant (the personal data of the complainants has been removed from the copy provided to the Tribunal). The Second Respondent confirmed that Stage 1 complaints are deleted two years from the date the complaint is closed. Stage 2 complaints are deleted three years from the date the complaint is closed.

In relation to how impartiality complaints are used for purposes associated with the BBC’s editorial output, the Second Respondent stated it is clear that the complaints held on the CRM are held for the purposes of journalism and fall within the third limb of the definition of “journalism” endorsed by the Supreme Court in Sugar v British Broadcasting Corporation (No. 2) [2012] 1 WLR 439. This is consistent with the Tribunal’s decisions in Williams v ICO (EA/2021/0065P) and Keighley v Information Commissioner (EA/2021/0220). Complaints about impartiality, and the responses to them, are retained by the Second Respondent for the purposes of reviewing editorial standards and the quality of journalistic content with a view to further enhancing them.

The Second Respondent submitted that there is no basis for impugning the nature and quality of the searches undertaken by the BBC. Very considerable resources have been devoted to responding to the Appellant’s requests, and the Second Respondent has always sought to act transparently and consistently with its obligations under the FOIA.

In respect of part 1 of the Appellant’s information request, this Tribunal is satisfied on the evidence before us that the closed material provided by the BBC is directly linked to the BBC’s journalistic output and is held by the BBC for the purposes of journalism.  

In respect of part 2 of the Appellant’s information request, this Tribunal is satisfied on the evidence before us that the closed material provided by the BBC in respect of complaints made to the BBC and its handling of such complaints is sufficiently linked to journalistic output and is held by the BBC for the purposes of journalism. 

In respect of part 3 of the Appellant’s request, and in the light of the BBC’s evidence and explicit confirmation at the hearing before us that it believes it has now provided all of the relevant information in its possession, the Appellant is content that this part of his request has now been complied with (albeit belatedly and thanks only to his appeal to the Tribunal). However, the Appellant objects to redactions made from an invoice provided by the BBC which the Appellant maintains are not warranted. The invoice in question relates to the Appellant’s request for: 

“All relevant documents including memoranda and minutes relating to the decision to recruit a person to fulfil the role now occupied by Professor Richard Sambrook including but not limited to… all communications between the BBC, its recruitment agency (if used) and Cardiff University relating to the appointment”. 

The invoice disclosed by the BBC does not reflect any payment made to Professor Sambrook but reflects a payment made by the BBC to the University in respect of the cost of researchers. Redactions have been applied to a breakdown of the number of hours worked by the researchers and their hourly rates.

While the BBC maintains that the invoice is not within the scope of the Appellant’s request, it says that it provided a copy to the Appellant in the spirit of cooperation.  

The Tribunal agrees that the information redacted from the invoice is not within the scope of the Appellant’s request, because information relating to the recruitment or appointment of a person to fulfil the role of Professor Sambrook cannot reasonably be interpreted to also include information relating to the appointment of researchers or to a breakdown of their hours worked or their hourly rates.

Accordingly, and for the reasons set out above, the Tribunal allows the Appeal in relation to Part 3 of the request.