So the key confidential arguments that the BBC, ITV and Channel 4 used to convince Ofcom to permit DRM on the HD Freeview signal are to be kept secret because there is no public interest test to compel disclosure of that information under sections 41 and 44 of the Freedom of Information Act. There can be little doubt that these were key arguments in the Ofcom decision, as that is precisely what Ofcom's summary of the decision stated in paragraph 1.6:
"This information you requested is being withheld as it falls under the following exemptions:· Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.and· Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act 2003. Section 44 is an absolute exemption under the Act and does not require a public interest test."
"1.6 In response to the Consultation the BBC, ITV and Channel 4 provided confidential details on the acquired HD content that would be affected if an effective content management framework was not provided on the DTT platform, including the need to 'blank out' some HD content. This evidence was supported by the views expressed by representatives of rights holders. Based on this information, and the increasing use of content management on other digital TV platforms, we have concluded that the BBC's proposal would widen the range of HD content available on the DTT platform, in particular high value film and drama content, and that this would bring positive benefits to citizens and consumers and also help ensure that the DTT platform is able to compete on similar terms with other digital TV platforms for HD content rights."The thing about section 41 and section 44 exemptions is that, despite the bypassing of a public interest requirement which make them look like a cast iron excuse, even if it would be in the public interest to release the information requested, these get-out clauses do not constitute an absolute immunity to the obligation to disclose information under the Act. Section 41 of the Act states:
"41 Information provided in confidence.and s2.3 of the full exemptions guidance on how s41 should be interpreted says:
(1) Information is exempt information if—(a) it was obtained by the public authority from any other person (including another public authority), and(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence."
"2.3 This exemption only applies if a breach of confidence would be "actionable". A breach of confidence will only be "actionable" if a person could bring an action and be successful. The courts have recognised that a person will not succeed in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence."Now it is my contention that the disclosure of the arguments of the BBC, Channel 4 and ITV in favour of DRM would be in the public interest and would significantly outweigh the interest in keeping the confidence. So a s41 refusal leads to the conclusion that Ofcom are concerned about legal action by the BBC, Channel 4 and ITV if they were to disclose this information; and also the risk that a judge would rule that keeping the information secret was in the public interest, a pretty difficult argument to make I would have thought. After all, if the confidential claims are in the public interest and so compelling as to be a key factor in Ofcom's decision to approve HD DRM, how can the public possibly be harmed by having access to and understanding these arguments; and the detailed efforts the broadcasters are making on our behalf.
Section 44 of the Act states:
"44 Prohibitions on disclosure.and the guidance says:
(1)Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—
(a)is prohibited by or under any enactment,
(b)is incompatible with any Community obligation, or
(c)would constitute or be punishable as a contempt of court.
(2)The duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any of paragraphs (a) to (c) of subsection (1)."
"2.1 This exemption is intended to ensure that certain existing legal prohibitions on disclosure will override the general rights of access under the FOI Act. There are three such types of existing legal prohibitions: prohibitions under existing Acts, European Community obligations, and disclosures which would constitute or be punishable as a contempt of court. It is important to note that in such cases not only is there no obligation to disclose under the FOI Act, there is no discretion to disclose either. There is no balance of public interest to be made. The prohibition on disclosure must be observed."That looks like a slightly tougher nut to crack. No discretion, no public interest. Tough. In her response to my FOI request, Ms Fraser of Ofcom states:
"Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act 2003."So she is claiming the protection of s41(1)(a) i.e. prohibition from disclosure under an existing Act, the Communications Act 2003. You'll have to bear with me here, whilst I now to do a detour to section 393(1), (2) and (6) of the Communications Act 2003.
Section 393(1) of the Communications Act 2003 does indeed state that:
Slam dunk. No disclosure of information obtained about a business.
"(1)Subject to the following provisions of this section, information with respect to a particular business which has been obtained in exercise of a power conferred by—
(b)the enactments relating to the management of the radio spectrum (so far as not contained in this Act),
(c)the 1990 Act, or
(d)the 1996 Act,
is not, so long as that business continues to be carried on, to be disclosed without the consent of the person for the time being carrying on that business."
Section 393(2)(a) of the Communications Act 2003 says:
"(2) Subsection (1) does not apply to any disclosure of information which is made—So s393(1) does not apply to Ofcom in carrying out their functions. It seems the obligation not to disclose the information from the BBC, ITV and Channel 4 is not as watertight as it might have appeared. Just for good measure,
(a) for the purpose of facilitating the carrying out by OFCOM of any of their functions;"
Section 393(6) of the Communications Act 2003 says
"6) Nothing in this section—So Section 393 cannot be used to limit matters included in an Ofcom report. And as a matter of interest, section 15 relates to Ofcom's duty to publish and take account of research; Section 26 relates to Ofcom's publication of information an advice for consumers; both of which arguably relate to the Freeview DRM decision. (Section 390 covers the annual report on the secretary of state's functions and is not directly relevant).
(a) limits the matters that may be published under section 15, 26 or 390;
(b) limits the matters that may be included in, or made public as part of, a report made by OFCOM by virtue of a provision of this Act or the Office of Communications Act 2002 (c. 11);
(c) prevents the disclosure of anything for the purposes of a report of legal proceedings in which it has been publicly disclosed;
(d) applies to information that has been published or made public as mentioned in paragraphs (a) to (c)."
That's just my intitial thoughts. I will have to go through what Ofcom has sent me in detail before producing a follow up response and if any FOI legal eagles have any thoughts I'd be happy to hear from you. In the meantime you can see the three documents Ofcom has sent me at WhatDoTheyKnow.
The response covering letter, in full, from Julia Fraser at Ofcom follows.
Dear Mr Corrigan,
Freedom of Information: Right to know request 1-155429914
Thank you for your request for information which Ofcom received on 27 August 2010 and has considered under the Freedom of Information Act 2000 (the Act).
I have answered your questions in turn below:
I would like to make a freedom of information request for full and complete copies of all the BBC, ITV and Channel 4 communications with Ofcom relating to the Ofcom consultation 'Content management on the HD Freeview platform' (Start date: 22 January 2010, End date: 02 April 2010). In particular could you send me:
(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010 http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/responses/BBC.pdf
This information you requested is being withheld as it falls under the following exemptions:
· Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.
· Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act 2003. Section 44 is an absolute exemption under the Act and does not require a public interest test.
(b) A copy of the BBC submission to Ofcom of 8 December 2009 on this same matter
This document is published and can be found at page 52 of the consultation: http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/summary/condoc.pdf.
(c) Details supplied by Channel 4, not part of its formal response to the consultation http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/responses/Channel_4.pdf relating to specific content which, in its view, may be at risk in the future if content management is not introduced and also those titles which it believes are currently sensitive.
Email correspondence from Channel 4 to Ofcom is included in the attached file. The attachment to that email cannot be disclosed by Ofcom as it falls under the following exemptions
· Section 41 of the Act, as explained above
· Section 44 of the Act, as explained above.
(d) A full copy of ITV communications with Ofcom relating to 'Content management on the HD Freeview platform'. ITV's submission is not obviously available on Ofcom's webpage relating to the consultation at http://stakeholders.ofcom.org.uk/consultations/content_mngt/?showResponses=true
Email correspondence from ITV Plc to Ofcom is included in the attached file. The attachment to that email cannot be disclosed by Ofcom as it falls under the following exemptions:
· Section 41 of the Act, as explained above
· Section 44 of the Act, as explained above
The attached file contains copies of all the correspondence that Ofcom holds that is relevant to your enquiry and that we can disclose, I have also attached a copy of a presentation by the BBC to Ofcom on this subject.
Note: since the date of this presentation, EBU members have now reached agreement on a common approach to content management which allows for both the BBC and other EBU members to adopt solutions in accordance with local practices.
Please note that some of the information within the correspondence have been redacted based on section 40 of the Act, which relates to personal information and which provides that such information is exempt for the purposes of the Act.
Other exemptions are likely to apply.
Please ensure that when using the provided information in any way, you comply with all relevant legislation. For example, the information provided may be protected by copyright under the Copyright, Designs and Patents Act 1988 (as amended). If in doubt, please seek independent legal advice. For Ofcom’s policy on copyright and related issues, please refer to http://www.ofcom.org.uk/about/accoun/disclaimer/#content.