Graham Howell
Office of Communications
7 February 2011Our reference 1-153521203Link to this
February 7th 2011
Mr Ray Corrigan
Via email: [FOI #45799 email]
Dear Mr. Corrigan,
Re: Freedom of Information request
Thank you for your request of 28 September 2010 for Ofcom to carry out an internal review of its decision regarding your original request for information in accordance to the Freedom of Information Act 2000 (the “FoIA”). We apologise for the delay in replying to you, which in a large part is because of an internal re-organisation we have just finished.
Request for Internal Review
In your original request, you asked for the following information:
(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...
(b) A full copy, including the redacted sections noted on page 1 and 7, of the BBC response to Ofcom consultation of 22 January 2010
(c) A copy of the BBC submission to Ofcom of 8 December 2009 on this same matter
(d) Details supplied by C4, not part of its formal response to the consultation 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
(e) A full copy of the ITV communications with Ofcom relating to Content management of the HD Freeview platform. ITV’s submission is not obviously available on Ofcom’s webpage relating to the consultation....
In your request for an internal review (the “Requested Information”), you asked Ofcom to review its decision to withhold “key information relating to sections (a) and similarly in relation to sections (c) and (d) of my request”. Specifically:
(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.
Your email of 28 September 2010, questioned the application of s393(2) and s393(6)(a) of the Communications Act 2003 (‘CA03’) to justify the possible disclosure of the information you have requested.
Our response to your internal review request
We have made appropriate and proportionate internal enquiries in response to your request for a review, and considered your case carefully. Looking at each of your requests in turn:
1. Requested Information provided by the British Broadcasting Commission (BBC)
The information you requested is being withheld for the following reasons.
(i) Section 44 FOIA – Prohibition of disclosure
The Requested Information is being withheld under section 44 of FoIA. Under this section, the Requested Information is exempt from disclosure as it falls within the prohibition on disclosure in s.393(1) CA03, as it is information relating to a business which has been obtained by Ofcom in exercise of its powers under that Act. Section 44 is an absolute exemption under the FoIA and does not require a public interest test.
In summary, the Requested Information is information with respect to the BBC that was obtained in exercise of a power conferred by the Broadcasting Act 1996 (‘BA96’) and the CA03; namely, for Ofcom to consider content management issues on the HD Freeview platform as part of its regulatory functions in that area.
Section 393(1) CA03 provides that the Requested Information 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. The BBC, a going concern, does not consent to the disclosure of the information.
We note that disclosing information in breach of section 393 (1) CA03 may constitute a criminal offence.
Section 393(2)
You raise the possible application of s393(2) CA03, which states that under section 393(2)(a), Ofcom may disclose information where this is for the purpose of carrying out one of its functions or, under section 393(2)(b), for the purpose of enabling that person to carry out their functions.
Sections 393(4) and (5) prescribe the statutory functions that are relevant to section 393(2) We have considered the functions provided for in the instruments set out under s393(4) CA03 and 393(5) CA03 .The FoIA is not prescribed amongst those enactments, nor to our knowledge do any of the orders made by the Secretary of State under section 393(4)(c) CA03 include a reference to the FoIA. As disclosure under FOIA is not a function for which Ofcom can disclose information for under that section, s393(2) CA03 is not relevant in this context.
In any event, and separate from FOI, Ofcom has made a decision as to what information to publish and what information to keep confidential when it published its statement in this area. Please refer to this statement.
S393(6)(a)
Section 393(6)(a) as provides states “nothing in this section limits the matters that may be published under section 15, 26 or 390 of the CA03;
Again, FoIA is not prescribed in s15, 26 or 390 of the CA03. Accordingly, we do not consider that s 393(6) of the Communications Act 2003 applies in this case.
Other reasons for withholding information may apply.
2. Requested Information provided by Channel Four (C4) – letter dated 28 April 2010
The Requested Information is being withheld for the following reasons.
(i) Section 44 – Prohibition of disclosure
The Requested Information is being withheld under section 44 of the FoIA. Channel Four, a going concern, does not consent to the disclosure of the information: consistent with the analysis above (see above, for the reasons set out there we do not consider that s 393(2), s393(6)(a) of the CA03 apply.)
Other reasons for withholding information may apply.
3. Requested Information provided by ITV – dated 1 April 2010 and 30 April 2010
Attached is ITV’s submission dated 1 April 2010, with redactions. The redactions relate to confidential discussions held by ITV with rightsholders. Additional further information provided by ITV relating also to their confidential discussions with rights holders is being withheld for the following reasons.
(i) Section 44 – Prohibition of disclosure
The Requested Information is being withheld under section 44 of the FoIA. ITV, a going concern, does not consent to the disclosure of the information: consistent with the analysis above (see above, for the reasons set out there we do not consider that s 393(2), s393(6)(a) of the CA03 apply.)
Other reasons for withholding information may 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/dis...
Yours sincerely
Graham Howell
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
If you have any queries or would like to discuss this informally then please contact Information Requests (email: [Ofcom request email]). Please remember to quote the reference number above in any future communications.
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Tuesday, February 08, 2011
Ofcom refuse to disclose BBC Freeview HD DRM submissions
Following my prompt last week Ofcom has now concluded its internal review of my freedom of information request relating to the BBC, ITV and Channel 4 stance on Freeview HD DRM. Graham Howell at Ofcom has written to outline the outcome of the review. The only extra information forthcoming at this stage is a redacted version of the ITV response to the consultation. Mr Howell's response is copied below:
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