Ofcom conducting internal review on my FOI on BBC DRM

I've had a holding response from Ofcom to say they are going to conduct an internal review on my follow up BBC DRM freedom of information request.  I hadn't formally asked for an official internal review but I assume my request to reconsider releasing the withheld information could have been interepreted as such. 

"Dear Mr Corrigan

Freedom of Information: Internal review

Thank you for your email dated 28 September (see below) to Ofcom asking for a review of our decision in relation to your request for information.

The review will be conducted under the supervision of the Secretary to the Corporation. While there is no statutory deadline for completing internal reviews, we aim to respond within 20 working days. Please contact me at [Ofcom request email] if you have any queries, remembering to quote the reference number 1-155429914.

Yours sincerely

Mauzima Bhamji"

Follow up to Ofcom on BBC DRM

I've sent a follow up note to Ofcom asking them to reconsider disclosing the key information they have withheld when responding to my freedom of information request on the BBC HD DRM decision. I've suggested the claimed exemptions under sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communications Act don't apply and that they have an obligation to disclose.  I was tempted but refrained from reminding them that the Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM as follows:

(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.

And that they appear to be failing in these duties when it comes to the BBC HD DRM decision.

Copy of my follow up note below.

To: Julia Fraser
Subject: Re: Your Ofcom enquiry

Dear Ms Fraser,

Freedom of Information: Right to know request 1-155429914

Thank you for your response to my freedom on information request
relating to the Ofcom consultation 'Content Management on the HD
Freeview platform' and in particular the full response to section
(b) and partial information supplied in connection with sections
(c) and (d) of my request.

You have, however, withheld key information relating to sections
(a) and similarly in relation to sections (c) and (d) of my
request, suggesting it falls under exemptions provided by Section
41 and Section 44 of the Freedom of Information Act and Section
393(1) of the Communications Act 2003.

In relation to Section 41, you will be aware and s2.3 of the full
exemptions guidance on how s41 should be interpreted says:

"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."

So the courts have recognised that there is a public interest test
in relation to Section 41 exemptions, despite your advice to the
contrary. 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. 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, (as stated by Ofcom in your
decision to approve Freeview HD DRM in June 2010) how can the
public be harmed by having access to and understanding these
arguments; and the detailed efforts the broadcasters are making on
our behalf?

On the question of your claim of exemption from disclosure under
Section 44 of the Act, as I understand it, you are claiming the
protection of s41(1)(a) i.e. prohibition from disclosure under an
existing Act, the Communications Act 2003, and specifically Section
393(1) of the latter Act. Section 393(1) does indeed appear to
prevent the disclosure of information obtained about a business.
However, Section 393(2)(a) of the Communications Act 2003 says:

"(2) Subsection (1) does not apply to any disclosure of information
which is made—

(a) for the purpose of facilitating the carrying out by OFCOM of
any of their functions;"

So s393(1) does not apply to Ofcom in carrying out its functions.
In addition Section 393(6) of the Communications Act 2003 says

"6) Nothing in this section—

(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)."

So Section 393 cannot be used to limit matters included in an Ofcom
report. 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 and advice for consumers; both
of which arguably relate to the Freeview DRM decision.

In relation to the information supplied, I fully understand and
support your decision to redact some of the information therein
based on Section 40 of the Act which relates to personal
information.

So thank you for the information you have supplied but I would ask
you to reconsider disclosing the information you have withheld
relating to sections (a), (b) and (c) of my original freedom of
information request. Given the balance of public interest test
required under section 41 of the Freedom of Information Act and the
claimed exemption under Section 44 being negated in particular by
section 393(2) of the Communications Act 2003, I would respectfully
suggest Ofcom has an obligation to disclose this information.

So just to be clear on the request, I have repeated the original
(a), (c) and (d) requests below:

(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/binarie...

(c) Details supplied by Channel 4, not part of its formal response
to the consultation
http://stakeholders.ofcom.org.uk/binarie...
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.

Note specifically in relation to (c): I would request the withheld
attachment to the email correspondence from Channel 4 to Ofcom.

(d) A full copy of ITV communications with Ofcom relating to
'Content management on the HD Freeview platform'.

Note specifically in relation to (d): I would request the withheld
attachment to the email correspondence from ITV Plc to Ofcom.

Thank you for your time and attention and I look forward to hearing
from you further on this matter.

Yours sincerely,

Ray Corrigan

BBC DRM response from Ofcom and intial thoughts

Ofcom has now responded to my freedom of information request relating to the decision to permit DRM on the BBC HD signal.  I include a copy of the covering letter at the end of this post.  My first perusal of the response suggests that the key information has been withheld on the basis of exemptions provided under sections 41 and 44 of the Freedom of Information Act.

"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."

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:

"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.

(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."

and s2.3 of the full exemptions guidance on how s41 should be interpreted says:

"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.

(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)."

and the guidance says:

"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:

"(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—

(a)this Act,

(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."

Slam dunk.  No disclosure of information obtained about a business. 

But...

Section 393(2)(a) of the Communications Act 2003 says:

"(2) Subsection (1) does not apply to any disclosure of information which is made—

(a) for the purpose of facilitating the carrying out by OFCOM of any of their functions;"

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,


Section 393(6) of the Communications Act 2003 says

"6) Nothing in this section—

(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)."

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).

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.

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.

(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.

Yours sincerely

Julia Fraser

Freedom of information request on BBC DRM: No Ofcom response yet

The statutory deadline for Ofcom to produce a response to my freedom of information request on BBC and freeview DRM was last Thursday, 24th of September.  As of yet I have recieved no response or even acknowledgement.  So on Saturday, 26th September I sent them a reminder.

Dear Office of Communications,

On the 26th of August I made 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'.

I understand by law that I should have received a response promptly
or at the latest within 20 working days, which in this case would
have been the 24th September.

I'm contacting you as a reminder today that I have not yet received
a response to my request.

Yours faithfully,

Ray Corrigan

Update: I've just had a response.  More when I've had the chance to review it.