BBC Correspondence

Lord Patton of Barnes
Chairman of the BBC Trust
Director, BBC Trust
180 Great Portland Street 
London W1W 5QZ 

Dear Lord Patton of Barnes, Chairman of the BBC Trust,

Ref: Censorship of Unum and Atos "negative" news items

I would like to complain that the BBC Trustees are failing in their oversight of the BBC in that, to an independent observer, partial reporting to the benefit of large companies is widespread. Recent events have high lighted that a few senior individuals in many layered hierarchical organisations such as the BBC can have a disproportionate effect on operational decisions. The key question is how many senior individuals are able to censor the information as outlined below. The next obvious question is what contact did these individuals have with the companies mentioned below. As a numerate engineer I estimate the probability of the deletions listed happening by chance is negligible. Clearly if the deletions were requested by the COI or placed under a DA-Notice, I have to accept Government censorship. Is it in the public interest to censor failures in the companies that the Government places multi-million contracts with? Is the BBC a tool of Government censorship? I would be interested in the Trustee's opinions on these questions.

I would like to be assured that there are sufficient independent accounting and audit procedures in place to prevent undue influence by large companies on editorial decisions. I believe the Trustees of the BBC do not influence editorial decisions. I have worked at the Press Association. As a result, I understand the pressures placed on media channels that accept advertising from large companies results in a natural avoidance of being seen to be critical about these large companies. "Never bite the hand that feeds". I am also familiar with the PR technique of "swamping" the media channel with many anecdotal positive stories to counter a detailed heavily researched factual negative story is a well known and widespread technique. The BBC should be immune to such pressure and been seen at all times to be impartial.

I would like you to review recent editorial decisions in respect of Unum (previous names include Unum Provident Insurance" and in respect of Atos Origin (Atos) their predecessor companies and their subsidaries.

In November 2001, there was a Labour conference near Oxford on 'Malingering and Illness Deception'. It was attended by Malcolm Wicks, the then Parliamentary Under Secretary of State for Work, and Mansel Aylward, his Chief Medical Officer at the Department of Work and Pensions (DWP). Unum (previously UnumProvident) was the driving force and was represented by John LoCascio. The work of this 2001 Labour conference resulted in the UK Welfare Reform Act. Unum helped to draw up the rules and regulations. UnumProvident Centre provides funding for Psychosocial and Disability Research based at Cardiff University. The Director of the Centre is Professor Mansel Aylward. This information is not available on the BBC website.

Unum and Atos were engaged by the DWP to work as part of the Technical Working Group which set the implementation details of the Employment Support Allowance which was the substantive part of the Welfare Reform Act 2007. The DWP document "Transformation of the Personal Capability Assessment" dated September 2006 "Annex C - working group and consultative group members" lists as members Sue Goodby and Dr Peter Dewis from Unum and Dr Angela Graham from Atos. It is believed and this has not been denied that the discredited Unum approach used in the US was replicated in the UK. The DWP have recently removed this document from their website.

On the 6 November 2007 the BBC News (Hew Edwards, anchor and Mark Daly, presenter) exposed Unum US practices. I quote from the transcript "...She was awarded $7.5million in damages but allegations of racketeering persisted. Then, in 2005, insurance commissioner John Garamendi declared: "UnumProvident is an outlaw company. It is a company that for years has operated in an illegal fashion." In a unique settlement signed by all 50 States, it was fined $23million USD, ordered to reopen 300,000 denied claims at a cost of half a billion dollars...". The BBC has recently removed this transcript from the BBC website.

BBC Scotland produced a film in May 2010 "Who is Cheating Who". I quote from this film "...Mr Danny Alexander MP found that in practice his constituents were denied allowances unfairly. He had evidence of gross unfairness. He stated that of those who appealed, 40% had their decisions reversed. He believed this high level suggested that there is something fundamentally wrong in the way that ESA has been implemented. Lots of people feel they have been rushed through the assessment and the report had not taking into account the details supplied by the patients...". This film has recently been removed from the BBC Scotland website. I leave the Trustees to search for Unum and Atos on the BBC News websites to judge for themselves.

Unum and Atos have been influencing website hosts to close down critical websites without contacting the website owners to request that the objectionable item be removed. The Carer Watch website which was set up by carers for carers is one example. The Atos withdrawal after three years of a ten year contract for Tower Hamlet GP services and other examples of Atos failures are not available on the BBC website. Judge for yourselves how important are the failures of Atos to the UK economy and society; Dec 2009 Cancer patients threatened, Apr 2009 De Beers sues Atos for millions, Nov 2008 Loss of confidential data, Apr 2007 Patients recalled for scans, Nov 2006 Clinic faces second investigation May 2006 Errors block benefits et al. However the sponsorship by Atos of the London 2012 Olympics is prominent on the BBC. The fact that during the 2009-2010 financial year the DWP paid Atos Origin £150,798,435 (I believe far above budget estimates) is not reported let alone multi-million pound payments paid by other Government departments. Maybe this "Alice in Wonderland" world is difficult to report since the sponsorship is a cost Atos pass on to the Government. Maybe the BBC can investigate why the Government allow Atos to claim to be a sponsor of the London 2012 Olympics when the Government bears so much of the cost.

Unum and Atos are believed to be carrying out a large PR and marketing campaign as they wish to sell Disability Insurance. They are continously recruiting. Their staff retention figures are unknown. Disability insurance covers a lifetime. If Unum and Atos claim to have long and successful track records, given the above this is patently false. If Unum claims to have changed, then it has no track record with their recently amended procedures.

The BBC is charged to be open, honest and impartial. The BBC Trustees exist to ensure that this is the case. I think the above provides strong evidence that the BBC, for reasons unknown, have been and are partial in their reporting of Unum and Atos. I look to the BBC Trustees to investigate, to find the editors who removed the stories and to publish the reasons for suppressing the above and other critical articles. In the opinion of many the above brings the BBC News organisation into disrepute and thus brings the whole of the BBC into disrepute.

I look forward to hearing from you. Thank you.

Yours sincerely

To:      foi@bbc.co.uk
Date:    4 November 2011
Subject: Unum internal documents

Dear Sir,

I am interested in accessing the Unum internal documents that were referred to in a BBC news item broadcast on 6 November 2007. Huw Edwards was the anchor and Mark Daly the presenter. Extracts from the news article are as follows:

Huw Edwards, anchor: A multinational insurance company accused of racketeering and cheating thousands of Americans out of welfare benefits, is giving advice to the British government on welfare reform. A BBC investigation has found that executives from Unum have held meetings with senior Whitehall officials to discuss changes to the benefit system. Mark Daly has this exclusive report:

....

Mark Daly, presenter: The BBC has discovered internal documents revealing that Unum believes it is driving Government policy. The Department for Work and Pensions refused to comment on Unum's past. ...

I would like published on the BBC FOI web site copies of these "internal documents revealing that Unum believes it is driving Government policy". I believe their publication is in the wider public interest in the light of current legislation being considered by Parliament.

I look forward to hearing from you. Thank you.

From:    FOI Enquiries (FOIEnquiries@bbc.co.uk)
Date:    28 November 2011 10:19
Subject: RFI20111353 - your request for information

Dear Mr B...,
 
I refer to your request for information dated 4th November and now enclose our response. 
Kind regards

..., Advisor - Information Policy & Compliance 

BBC Freedom of Information 
Room 2252, BBC White City, 201 Wood Lane, London W12 7TS 
web:   www.bbc.co.uk/foi 
Email: foi@bbc.co.uk 
Tel:   020 8008 2882 

Date: 28th November 2011

Dear Mr B...,

Freedom of Information request – RFI 20111353

Thank you for your request to the BBC of 4th November 2011, seeking the following information under the Freedom of Information Act 2000 (the Act):

I am interested in accessing the Unum internal documents that were referred to in a BBC news item broadcast on 6 November 2007. Huw Edwards was the anchor and Mark Daly the presenter. Extracts from the news article are as follows:

Hew Edwards, anchor: A multinational insurance company accused of racketeering and cheating thousands of Americans out of welfare benefits, is giving advice to the British government on welfare reform. A BBC investigation has found that executives from Unum have held meetings with senior Whitehall officials to discuss changes to the benefit system. Mark Daly has this exclusive report:

....

Mark Daly, presenter: The BBC has discovered internal documents revealing that Unum believes it is driving Government policy. The Department for Work and Pensions refused to comment on Unum's past. ...

I would like published on the BBC FOI web site copies of these "internal documents revealing that Unum believes it is driving Government policy". I believe their publication is in the wider public interest in the light of current legislation being considered by Parliament.

The information you have requested is excluded from the Act because it is held for the purposes of "journalism, art or literature." The BBC is therefore not obliged to provide this information to you and will not be doing so on this occasion. Part VI of Schedule 1 to the Act provides that information held by the BBC and the other public service broadcasters is only covered by the Act if it is held for "purposes other than those of journalism, art or literature". The BBC is not required to supply information held for the purposes of creating the BBC's output or information that supports and is closely associated with these creative activities. 1

You may not be aware that one of the main policy drivers behind the limited application of the Act to public service broadcasters was to protect freedom of expression and the rights of the media under Article 10 European Convention on Human Rights ("ECHR"). The BBC, as a media organisation, is under a duty to impart information and ideas on all matters of public interest and the importance of this function has been recognised by the European Court of Human Rights. Maintaining our editorial independence is a crucial factor in enabling the media to fulfil this function.

That said, the BBC makes a huge range of information available about our programmes and content on bbc.co.uk. We also proactively publish information covered by the Act on our publication scheme and regularly handle requests for information under the Act.

Appeal Rights

The BBC does not offer an internal review when the information requested is not covered by the Act. If you disagree with our decision you can appeal to the Information Commissioner. Contact details are: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF telephone 01625 545 700. http://www.ico.gov.uk

Please note that should the Information Commissioner's Office decide that the Act does cover this information, exemptions under the Act might then apply.

Yours sincerely,

Stephanie Harris, Head of Accountability, BBC News

1. For more information about how the Act applies to the BBC please see the enclosure which follows this letter. Please note that this guidance is not intended to be a comprehensive legal interpretation of how the Act applies to the BBC.

Freedom of Information

From January 2005 the Freedom of Information (FOI) Act 2000 gives a general right of access to all types of recorded information held by public authorities. The Act also sets out exemptions from that right and places a number of obligations on public authorities. The term "public authority" is defined in the Act; it includes all public bodies and government departments in the UK. The BBC, Channel 4, S4C and MG Alba are the only broadcasting organisations covered by the Act. Application to the BBC The BBC has a long tradition of making information available and accessible. It seeks to be open and accountable and already provides the public with a great deal of information about its activities. BBC Audience Services operates 24 hours a day, seven days a week handling telephone and written comments and queries, and the BBC's website bbc.co.uk provides an extensive online information resource.

It is important to bear this in mind when considering the Freedom of Information Act and how it applies to the BBC. The Act does not apply to the BBC in the way it does to most public authorities in one significant respect. It recognises the different position of the BBC (as well as Channel 4 and S4C) by saying that it covers information "held for purposes other than those of journalism, art or literature". This means the Act does not apply to information held for the purposes of creating the BBC's output (TV, radio, online etc), or information that supports and is closely associated with these creative activities.

A great deal of information within this category is currently available from the BBC and will continue to be so. If this is the type of information you are looking for, you can check whether it is available on the BBC's website bbc.co.uk or contact BBC Audience Services.

The Act does apply to all of the other information we hold about the management and running of the BBC.

The BBC

The BBC's aim is to enrich people's lives with great programmes and services that inform, educate and entertain. It broadcasts radio and television programmes on analogue and digital services in the UK. It delivers interactive services across the web, television and mobile devices. The BBC's online service is one of Europe's most widely visited content sites. Around the world, international multimedia broadcaster BBC World Service delivers a wide range of language and regional services on radio, TV, online and via wireless handheld devices, together with BBC World News, the commercially-funded international news and information television channel.

The BBC's remit as a public service broadcaster is defined in the BBC Charter and Agreement. It is the responsibility of the BBC Trust (the sovereign body within the BBC) to ensure that the organisation delivers against this remit by setting key objectives, approving strategy and policy, and monitoring and assessing performance. The Trustees also safeguard the BBC's independence and ensure the Corporation is accountable to its audiences and to Parliament.

Day-to-day operations are run by the Director-General and his senior management team, the Executive Board. All BBC output in the UK is funded by an annual Licence Fee. This is determined and regularly reviewed by Parliament. Each year, the BBC publishes an Annual Report & Accounts, and reports to Parliament on how it has delivered against its public service remit.

I have made a Freedom of Information request (RFI 2011135) for the BBC to provide copies of the Unum internal documents that were referred to in a BBC news item broadcast 6 November 2007. This has been refused as the BBC state that the request is excluded from the Act because it is held for the purposes of "journalism, art or literature." I would like the Information Commissioner's Office to overturn this refusal on the following grounds:

1. Journalism is the practice of investigation and reporting of events, issues and trends to a broad audience in a timely fashion. The key word is timely. The documents requested were created before November 2007, are possibly important historical documents and thus are not covered by the "journalism" exclusion.

2. The BBC stated in the article that Unum, accused of racketeering and cheating, held meetings with senior Whitehall officials to discuss changes to the benefits system. The requested documents revealed "that Unum believes it is driving Government policy".

2.1 Clearly if these documents listed meetings and payments to senior Whitehall officials, then the publication of these documents are in the public interest and even may result in a Parliamentary Inquiry or even a Police investigation.

2.2 Prof Mansel Aylward, the Chief Medical Officer of the DWP, was closely associated with Unum and after leaving the DWP was appointed Director of the Unum Provident Research facility at Cardiff University.

2.3 A previous Chair of the Parliamentary Select Committee on Work and Pensions, Lord Kirkwood of Kirkhope, is listed in the House of Lords Register of Interests (2002) as the Chairman of the Unum Customer Advisory Panel for which he received payment from Unum and additional payments for other work for Unum.

3. My concern was heightened following the removal from the BBC websites of news articles critical of Unum coincident with the launch of a major marketing campaign by Unum to sell private disability health insurance through employers and, it is widely believed, coincident with the launch of a major PR campaign by Unum to discredit the disability provisions provided by the state. I wrote a letter dated 26 August 2011 to the BBC Trustees asking them to investigate why these articles, some very recent, were removed. I have not yet received a reply.

3.1 The BBC as a large employer would be an obvious target for Unum. My research suggests that the Unum offering is without merit for an employee but there may be advantages to an employer. Unum promote a "non-medical model" for medical condition assessments.

I suggest that the BBC provides copies of these documents to the ICO. The ICO could consult and decide if the documents can be released or decide on what grounds they should be kept secret. I am not requesting the ICO to consider the merits or otherwise of Unum and Unum insurance products. I am asking the ICO to agree or otherwise with the BBC decision to keep these documents secret and not subject to public scrutiny.

Finally I suggest that if the ICO agrees with the BBC that these historical documents should be kept secret, this would set a poor precedent. To take an extreme case a Government department might issue a press release and decline to release supporting documents as they are covered by the "journalism" exclusion. It seems sensible for the ICO to set a time limit, perhaps three years during which the "journalism" exclusion can be valid. I further suggest this would be a good compromise between the Government's desire for openness and transparency and the freedom of a Government funded organisation such as the BBC to claim "journalism" exclusion.

I look forward to hearing from you.

From:    casework@ico.gsi.gov.uk
Date:    13 December 2011 08:51

Subject: [Ref. FS50426943][Ref. FS50426943] 

Dear Mr B...

Case Reference Number FS50426943

Your information request to British Broadcasting Corporation ("BBC")

Thank you for your correspondence of 5 December 2011 in which you make a complaint about BBC's decision not to release the information you requested.

Your case has been allocated to one of our case resolution teams who will contact you as soon as possible to explain how your complaint will be progressed.

The Information Commissioner's Office is an independent public body set up to promote public access to official information. We will rule on eligible complaints from people who are unhappy with the way public authorities have handled requests for information under the Freedom of Information Act 2000.

If you need to contact us about any aspect of your complaint please contact our Freedom of Information Helpline on 0303 123 1113, being sure to quote the reference number at the top of this letter.

Yours sincerely,

Sent on behalf of ... Group Manager, Complaints Resolution, Information Commissioner's Office

From:    ...@ico.gsi.gov.uk
Date:    20 January 2012 13:55

Subject: [Ref. FS50426943] 

20 January 2012

Case Reference Number FS50426943

Dear Mr B...,

Your FOIA complaint against the BBC

I am writing from the Information Commissioner's Office about the complaint that you have made about how the above public authority handled your request for information dated 04 November 2011.

This letter has a single purpose, to explain my preliminary verdict in this case and why I have come to this verdict.

In order to achieve this purpose, it will have four parts. The first part will explain some key principles of the legislation. The second will provide an appraisal of the correspondence. I will then explain my preliminary verdict and why I have come to that verdict. I will then present action points and timescales to enable your case to proceed in a manner that you choose.

(1) Some key principles about the operation of the Act

I believe that there are two key points that should be made at this point in my investigation. They are:

1. The Commissioner can only consider the operation of the Act

The Commissioner only has the power to consider the operation of the Act. The Commissioner appreciates that you have concerns regarding Unum internal documents that were referred to in a BBC news report but the Commissioner is unable to compel the public authority to provide information outside its obligations under the Act.

2. The BBC is only a public authority under the Act in respect to some of the information that it holds

The BBC is an unusual public authority because Parliament decided that it should not be required to provide information that was held for the purposes of 'art, journalism or literature'. The Commissioner has had considerable litigation about what this means with the BBC over the years that the legislation has been in force. In summary, if the information is held in the process of creating journalism, art or literature then it falls outside the Act. This is the key issue in this case and I will discuss the relevant authorities later.

(2) Summary of the correspondence

On 04 November 2011 you requested information in the following terms:

"I would like [...] copies of these 'internal documents revealing that

Unum believes it is driving Government policy'."

On 28 November 2011 the BBC issued a response. The BBC explained that it did not believe that the information was embraced by the Act because it was held for the purposes of 'art, journalism or literature'.

(3) My preliminary verdict in this case

I can confirm that my preliminary verdict is that the BBC was correct that the information was excluded from the Act.

I want to use this opportunity to explain why I believe this is so.

The BBC is only covered by the Act if the information that has been requested is held for "purposes other than those of journalism, art or literature". The information that falls within the purposes of journalism, art and literature is derogated; this is because the BBC has no obligations to consider it under the Act.

This provision has created considerable litigation between the Commissioner and the BBC. As a result, the High Court and the Court of Appeal have explained their view about when the derogation will apply and their decisions are binding on the Commissioner.

The High Court considered the scope of the derogation in the cases of the BBC v Steven Sugar and the Information Commissioner [EW2349] and the BBC v the Information Commissioner [EW2348]. In both decisions Mr Justice Irwin stated:

"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).

This issue was appealed to the Court of Appeal in the case Sugar v British Broadcasting Corporation and another [2010] EWCA Civ 715. The Court of Appeal rejected the appeal. The leading judgment was made by Lord Neuberger of Abbotsbury MR who stated that:

"On this issue, again I am in agreement with Irwin J. In my view, the BBC's interpretation is to be preferred: once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under FOIA, even if the information is also held by the BBC for other purposes." (para 44)

... provided there is a genuine journalistic purpose for which the information is held, it should not be subject to FOIA." (para 46)

The Commissioner interprets the phrase "to any significant extent", when taken in the context of the judgments 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 relationship between the information and one of the purposes listed in Schedule 1, then the information is derogated. The information relevant to the request need not be journalistic, artistic or literary material itself.

All the BBC must evidence is that the information is being used in order to create output, in performing one of the activities covered by journalism, art or literature. If it is, then the information falls outside the scope of the legislation.

The Court of Appeal has also helpfully accepted a definition of what constitutes journalism that was introduced in the Information Tribunal. This definition was worded as follows:

"107. The first is the collecting or gathering, writing and verifying of materials for publication.

108. The second is editorial. This involves the exercise of judgement on issues such as:

• the selection, prioritisation and timing of matters for broadcast or publication,

• the analysis of, and review of individual programmes,

• the provision of context and background to such programmes.

109. 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."

In essence, in this case, one is considering information concerning a news report by Mr Daly on 06 November 2007 that involved the citation of internal Unum documents.

I find this information relates to the Tribunal's first definition of journalism. The Commissioner accepts that it is well within the remit for BBC journalists to hold documents collected as part of the legitimate information gathering process. To collect material for publication or broadcast will more-often-than-not require journalists to obtain and scrutinise communication otherwise not privy to the view of those 'outside' an organisation. Journalists are under no obligation with reference to the FOIA to release their sources, materials or data.

The Commissioner considers the second element of journalism within the definition above - the editorial process – to be relevant in this instance also. The documents held by a journalist for the purposes of reporting will be used by editors to assist in the selection and prioritisation of news items where appropriate. This is because editors will view the intelligence gathered by a reporter in order to assess its weight in the news agenda. The documents in his case will also be used by editors in order to undertake the review of news output. This may, for example, include the analysis of a news item by an editor after publication or broadcast.

This leads the Commissioner to also find that the requested information is held for purposes that fall within the third paragraph of the definition of journalism. In this instance these documents may be used in future or for a similar or related news item and so can be described as being held by the BBC for the purposes of journalism. These records contribute towards the maintenance and enhancement of standards and quality where editors review the accuracy, balance and completeness of news items subsequent to publication or broadcast.

The BBC explained in their response that the derogation protects freedom of expression and the rights of the media under the European Convention on Human Rights (ECHR). In this case I find that the disclosure of the Unum documents held by Mr Daly, or any of his tangible news intelligence for that matter, would impinge his journalistic independence. This is because editorial decisions could be influenced or compromised if journalists were to hand over their sources and data collected for the purpose of news dissemination. Furthermore, contacts must feel free and uninhibited to contact members of the press to partake in free and frank discussion and to disclose tangible intelligence to news organisations. Disclosure might prevent this from happening in the future. This is not exclusive to the work of Mr Daly. The editorial process must be freely conducted – from start to finish - within the BBC in order to comply with Article 10 of ECHR.

It is necessary to consider whether information was still held genuinely for the purposes of the derogation on 04 November 2011. It is not material whether the information is also held for other purposes too, providing that it is held genuinely for the purposes of 'art, journalism or literature'.

The Information Tribunal has also explained that the status of information should be judged against the following three criteria:

• The purpose for which the information was created;

• The relationship between the information and the programmes content which covers all types of output that the BBC produces; and

• The users of the information.

The Commissioner has carefully considered the arguments of both sides to consider the status of the information.

On this occasion I find that the documents held by Mr Daly were intrinsic to the content of a news item, are relevant to the content of future news items and are held as part of the news review process, and so, after considering all the circumstances in this case the Commissioner is satisfied that the BBC genuinely holds the information for the purposes of the derogation.

In view of the above, my preliminary view is that the information that you have requested falls outside the Act. The BBC has no obligations in relation to timeliness because it is not a public authority in respect to information that falls within the derogation.

The law does not permit me in this circumstance to consider public interest arguments that might favour the disclosure of the documents held.

I want to confirm that I am perfectly happy to draft a Decision Notice in this case, however, it is very likely to follow the lines of this initial verdict.

(4) Actions required

Please take one of the following options, as soon as possible, and in ten working days in any event, so by 03 February 2011:

1. It may be the case that you are prepared to reluctantly 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. 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. I am happy to draft this notice, but as explained above it is highly likely to uphold the position of the BBC. Unfortunately due to our internal approval procedure it is likely to take some time for an appropriate Decision Notice to be issued and I did not want to keep you waiting any longer than necessary. You would be entitled to appeal the Decision Notice to the First Tier Tribunal (Information Rights) should you want to. I would appreciate if you choose this option to provide your arguments about why you disagree with the preliminary verdict that is outlined above.

If I do not hear from you by then, I will proceed on the basis that you have chosen option one and that you are prepared to withdraw this case.

If you want to discuss this case further, you are welcome to telephone me directly on 01... ... ... or you can reply to this email leaving the subject line unchanged (so that [Ref. FS50426943] remains). I am more than happy to speak with you and perhaps go over this verdict with you.

I appreciate that the content of this letter is likely to be disappointing to you - especially in light of the context of your complaint. However, I would like to make clear that the journalism derogation does not apply to other public authorities where the information might be held.

I believe it is right to make the situation as clear as possible from the outset.

I hope that - despite the verdict offered to you in this letter - I have been clear and helpful.

Yours sincerely,

... Case Officer, Information Commissioner's Office

To:    ...@ico.gsi.gov.uk
Date:    23 January 2012 13:55

Subject: [Ref. FS50426943] 

Dear ...,

I would like to complement the ICO on the exemplary way that my complaint has been handled by all concerned.

I appreciate the detailed explanation of your preliminary verdict and previous efforts by the ICO to clarify through legal precedents the scope of FOI in respect of the BBC. I apologise for failing to fully research the legal judgements prior to refering my complaint to the ICO.

I may have mistakenly taken the BBC to be an indirect department of Government and thus have assumed that BBC "journalism" is an extension of the COI (formerly GNN) and as such produces "news" whose veracity is on a par with most of the world state funded news media channels. I assume the COI is subject to FOI requests and thus I assumed that some of the journalism the BBC does undertake is guided by the COI and so it could be argued that in these cases it is not journalism in the sense that is protected under ECHR. I believe news releases published by COI are not covered by ECHR. I felt it was reasonable to argue that the suppression of the Unum documents by the BBC is because the BBC has been instructed by the COI so to do and thus is not covered by ECHR.

Notwithstanding the above and given the legal rulings quoted I accept neither the ICO nor I are in a position to state for certain whether BBC journalism, whether independent or guided by the COI, is covered under ECHR. I can see that I need to suspend judgement and reluctantly accept that if the BBC claims the suppression of the Unum documents is for journalistic reasons it would be very difficult to prove otherwise. Even FOI requests to the COI are unlikely to provide supporting evidence. I have personal experience (from working in a major press agency) that the COI prefers to instruct through unrecorded phone calls or "off-the-record" face to face meetings.

Given your arguments that I accept in full, I would like to withdraw my complaint. You have been very helpful. This matter is now closed.

Please forward my appreciation to all concerned. Thank you.

Yours sincerely