In October 2003 – some three years after the commencement of the second Intifada – the BBC elected to respond to public criticism of its coverage of the Palestinian-Israeli conflict by commissioning an analysis of its domestic Middle East coverage. Former BBC employee Malcolm Balen was re-employed on a one-year contract for the purpose of conducting the analysis.
Initially, much of Mr Balen’s work was carried out orally, but – at the request of the BBC’s Director of News at the time, Richard Sambrook – he also produced a written report, submitted in July 2004. The aims of the Balen Report, as it became known, were to survey the quality (including impartiality) of the BBC’s coverage of Middle East coverage and to address the subject of complaints on that issue, as well as to make practical suggestions for improvement.
As a result of the internal BBC publication of the Balen Report, changes were instigated in the methodology of the BBC’s Middle East reporting, including the establishment in 2005 of the post of Middle East Editor and the compilation of the ‘Key Facts Guide‘.
In January 2005, Mr. Steven Sugar (a British solicitor) requested a copy of the Balen Report from the BBC under the Freedom of Information Act. Mr. Sugar’s request was denied by the BBC, which claimed that the report was commissioned “for the purposes of journalism” and therefore exempt from the Freedom of Information Act.
Mr. Sugar appealed unsuccessfully to the Information Commissioner and then later to the Information Tribunal, with the latter finding in his favour in August 2006. The BBC rejected that ruling and took the case to the High Court, which in April 2007 accepted the BBC stance. A BBC statement issued at the time said:
“The BBC’s action in this case had nothing to do with the fact that the Balen report was about the Middle East – the same approach would have been taken whatever area of news output was covered.”
Mr. Sugar appealed the High Court’s decision, but lost. He subsequently took the case to the House of Lords, which upheld his appeal in February 2009, declaring that the original decision of the Information Tribunal should stand.
At the time, Steven Sugar said:
“This case is about making the BBC accountable for its journalism. The House of Lords has now decided to reinstate the decision of the Information Tribunal that the report is covered by the Freedom of Information Act. The BBC argued that the Information Tribunal had no jurisdiction to hear my appeal to it, but would have had jurisdiction to hear an appeal to it from the BBC. This would have created an obvious unfairness.”
In October 2009 the BBC again appealed to the High Court – successfully. In June 2010 the Court of Appeal rejected a further appeal made by Mr. Sugar. After Mr. Sugar’s death in January 2011, his widow continued to pursue the case and appealed to the Supreme Court. That appeal was rejected in February 2012.
The seven-year legal battle waged by the BBC to prevent the Balen Report being made public has been the subject of much criticism, not least on the subject of the cost to license fee payers. In 2007, MP David Davis said:
“An organisation which is funded partly to scrutinise governments and other institutions in Britain appears to be using tax-payers money to prevent its customers from finding out how it is operating. That is absolutely indefensible. I think the BBC are guilty of shameful hypocrisy. What could possibly be in this report that could possibly be worth £200,000 to bury? What is it they feel is so awful in this report?”
Writing in the Jerusalem Post in 2011, Anglo-Israeli lawyer Trevor Asserson pointed out that:
“The Freedom of Information Act in theory exposes the BBC to scrutiny by private citizens. In reality, the BBC has negotiated an exception which allows it to keep secret any document to do with “journalism.” The BBC realized it was getting the Middle East story badly wrong a few years ago when it received a flood of complaints. In response it hired Malcolm Balen to study its reporting on the Middle East and to issue an internal report. Balen’s appointment was used to deflect criticism; however, the BBC refused to make his report public. Indeed it has spent an estimated £300,000 opposing a freedom-of-information request to reveal the Balen report. Despite the BBC losing in the House of Lords, England’s highest court, the report remains locked up because the BBC has started a new legal defense, which it kept in reserve in case it lost its first defense. This is a well-tried ploy by the BBC, which can expect to out-spend its litigation opponents. Here it is forcing the entire claim to be run again, ab initio.”
Others have pointed out the hypocrisy of the fact that the BBC itself often uses the Freedom of Information Act and indeed it has a special webpage dedicated to stories it has uncovered in that way, where it states:
“The BBC has used the Freedom of Information Act since 2005 to unearth stories that might otherwise have remained secret. This page features some more recent or important examples.”
Ironically, the BBC’s employment of the Freedom of Information Act in order to promote ‘the public’s right to know’ appears to have commenced around the same time that it began using aspects of that same law in order to avoid having to reveal the contents of the Balen Report to that same public.