Tribunal victory: BBC must disclose Governors’ minutes

I won my first appeal to the Information Tribunal this week for the case heard 20th December 2006. The decision orders the BBC to publish secret documents that should reveal the reasons (if any) behind the Governors’ decisions to sack former director general Greg Dyke and issue an abject apology to the government for its coverage in light of the Hutton report.

The case was brought by myself and The Guardian newspaper after the BBC refused for two years to disclose the minutes from a meeting of the Governors held on 28th January 2004. Another meeting was held on 29th January but minutes were not kept. The BBC is now considering its options. It has 28 days to comply or seek a judicial review from the high court.

The decision itself is rather bizarre and not as forthright as I would like. There remains an overriding attitude of deference to those in authority. To be fair, this could simply be a reflection of the Freedom of Information Act, which is written to favour those in power. For example, the Tribunal interprets the law as stating that a qualified person can come to a reasonable opinion without using any reason whatsoever! No facts, evaluation or analysis need be taken into account, simply the opinion of the public body involved in the case is deemed conclusive evidence that the decision is reasonable. This is a standard of reasonableness that has more in common with the religious fundamentalist than a post-Enlightenment rationalist.

Nevertheless, the decision is important for many reasons. Firstly, it provides some limitation to the wanton use of the section 36 exemption: information prejudicial to the effective conduct of public affairs. This particular case hinged on the BBC’s claim that to publish the reasoning behind its decisions ‘would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation.’ This exemption has become popular among secrecy-loving officials precisely because the test for whether the exemption applies is completely subjective. The ‘qualified person’ is the public body itself, in this particular case the BBC Board of Governors. Fortunately, a public interest test is attached to this exemption (though not, I might add, when it concerns Parliament as I have discovered to my cost).

The Guardian’s article outlines the general facts of the decision or you can download a copy of the 32-page Tribunal Decision.

The decision is long and legalistic (perhaps due to the rash of QCs involved in this case) and a good deal of words are expended on justifying the Tribunal’s authority to adjudicate on cases. Reading through the decision, I’d love to say we won the case due to our crusading common sense, rhetorical talent and legal reasoning, but it seems that if the BBC had produced even a modicum of evidence (such as statements from the Governors) we may have lost. The law as it is written gives greater weight to the unreasoned opinion of those in power than public interest, evidence or principals of democracy. We won because the BBC presented such an incredibly weak case. Andrew Bartlett QC, the presiding chair of the tribunal, said the BBC’s argument to keep secret the minutes was ‘unimpressive, meagre and unrealistic’.

The BBC provided no witness evidence from any Governor, or indeed from anyone, to assist us in relations to the likelihood, severity, extent or frequency of any such inhibition. We are left with an impression that the BBC had a greater concern with the maintenance of secrecy than with the specifics of why these particularly important minutes should or should not be published.

In contrast, Mr Bartlett said there was a ‘strong public interest’ in knowing why the governors had decided to sack Mr Dyke and apologise to the government.

Finally, I have concerns about paragraph 126 of the decision which seems to give the BBC a ‘second chance’ that no other repondent has yet been offered: that the Tribunal is willing to receive further confidential submissions related to redacting (or blacking out) parts of the minutes. The Tribunal also seems to be allowing the BBC to seek a continuation of the oral hearing. In all other cases, the Tribunal’s decision is final and neither the appellate nor the respondent can seek amendments to the ruling. If the decision was made to order full disclosure then why is the Tribunal seemingly giving the BBC a chance to redact (or black out) passages in the minutes? I am consulting lawyers about this paragraph.

Other Notes

The points of interest in the decision are mostly from paragraphs 76 onwards.

Draft Decisions

Paragraph 50 – The Tribunal commented on the Information Commissioner’s practice (under the Memorandum of Understanding with Central Government) of providing public authorities with draft decision notices without copying it to the applicant for comment.

That seems to be a practice likely to give rise in the minds of applicants to concerns about the independence and impartiality of the Commissioner.

Would disclosure inhibit future minute taking?

One only has to watch an episode from the 1980 series ‘Yes Minister’ to see that officials were not taking minutes even in a completely secret society. Rather, the failure to take minutes is an indication of poor record-keeping practices, poor accountability and overall incompetence and lack of professionalism in a public body. The Tribunal agreed, noting that despite the Governors’ stated assumption of confidentiality, they failed to take minutes of their meeting on 29 January 2004. Mr Bartlett wrote:

If a public body does not follow satisfactory practices in keeping records of meetings, we are not inclined to think that the prospect of disclosure will make that situation significantly worse.

Scrutiny doesn’t mean poor decision-making

It’s an uphill battle getting bureaucrats to review the entrenched cultural assumption that decision-making can only be done in secret. But I’m making some headway: paragraph 112 states

While we fully accept that such secrecy may be required for some matters of particular sensitivity, Ms Brooke made the countervailing point that decision-making, particularly on matters of importance, could be improved by greater transparency, because that provided an incentive to decision-makers to ensure that their decisions were soundly based on appropriate evidence and on public rather than private interests, and would be able to stand up to public scrutiny.

Would public scrutiny inhibit public servants from speaking their mind?

The Tribunal showed skepticism of this view, quoting evidence given by Greg Dyke: Para 37. Mr Dyke said in his statement:

  • The Board of Governors consists of individuals of the highest standing who have reached high positions in other walks of life. In my role as Director General I worked closely with many BBC Governors. In my experience they are not the type of individuals who would be inhibited from expressing their views by fear that those views might be made public in the future.
  • In my role as Director General I was fully aware that the BBC was going to be subject to the Freedom of Information Act and that documents which I created would probably be available for public inspection at some future date. I am sure that the members of the Board of Governors also know that the Act applies to the BBC … I cannot believe that any BBC Governor or executive would express views at a Governors’ meeting on the assumption that these would never see the light of day.
  • In any event, anyone involved in important and historic decisions such as those [that] were made in response to the Hutton Report would know that their deliberations would be matters of interest and importance which would, inevitably, be studied by others who were seeking to understand and analyse what had happened.

One Response to “Tribunal victory: BBC must disclose Governors’ minutes”

  1. Nick Evans says:

    Heather, you say above, “Finally, I have concerns about paragraph 126 of the decision which seems to give the BBC a ‘second chance’ that no other repondent has yet been offered: that the Tribunal is willing to receive further confidential submissions related to redacting (or blacking out) parts of the minutes.”

    This has happened on a couple of other occasions, notably the recent decision requiring Derry Council to publish details of their arrangements with Ryanair. Did the BBC present any evidence at all about whether specific parts of the minutes should be confidential, or did they simply try to protect the whole lot? If it’s the latter, then you can see that there is a point in asking them whether there are any specific elements of the minutes where the public interest favours non-disclosure, even though the public interest favours publishing the majority. Clearly, if the BBC is to make an argument about specific parts, this might involve telling the Tribunal what those parts cover, and this would have to be confidential, otherwise it would defeat the point of making the submissions in teh first place.

    Unfortunately, the legalistic nature of the ruling is about par for the course. This is partly because of the legal involvement, but also because FoI is still relatively new, and the Tribunal has to lay down fairly extensively reasoned ground-rules, not only for itself and the Commissioner to follow in the future, but also in case its decisions get challenged in the High Court.

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