I've done a rough timeline on Open University academics' open letters and freedom of information requests relating to Ofcom's consultation and decision on the BBC/Freeview HD signal DRM.
25 March 2010
Open letter to Ofcom objecting to HD signal DRM proposal signed by 50 OU academics
Also sent as formal response to the Ofcom consultation. (My esteemed colleague Blaine Price sent the submission and Ofcom filed it, as an individual rather than a group response to the consultation).
21 May 2010
OU academics Open letter to Michael Lyons, the Chairman of the BBC Trust
Published by OpenDemocracy 30 May 2010
We received an acknowledgement of this letter from Mr Lyons’ personal assistant, June Prunty, (on 27 May 2010) but we never received a substantive response from Mr Lyons himself.
14 June 2010
Ofcom approve BBC/freeview HD DRM
The heart of the decision was in paragraphs 1.5 and 1.6 where they admitted to being persuaded by “confidential” i.e. secret information provided by BBC, ITV and Channel 4, as well as the story spun by rights holders.
There are many examples of confused thinking in the document, though, and their perspective on copyright law in 5.31 and 5.36 and the, shall we say, counterintuitive logical leaps made from that perspective, plus the reference to "fair usage rights" (lack of precision at best, ignorance of the law at worst) suggests a shaping of the decision by the content industry; (and the, 'if you only knew what I knew', secret details of secret meetings/negotiations held between the broadcasters and content industry).
26 August 2010
We sent a freedom of information request for the “confidential” information supplied by broadcasters to the Ofcom consultation via the whatdotheyknow website
This link contains copies of subsequent exchanges of communications with Ofcom right up to and including their most recent declaration on 7th February 2011, in response to our request for an internal review of their decision, that they were withholding the key information.
27 September 2010
Ofcom’s initial response to the FOI request.
http://www.whatdotheyknow.com/request/45799/response/117109/attach/html/3/1%20155429914%20final%20Ray%20Corrigan.docx.html (Firefox 4.0.1 seems to be having problems displaying this properly but it reads fine in Chrome)
The initial excuses for withholding the key confidential arguments that the BBC, ITV and Channel 4 used to convince Ofcom to permit DRM on the HD Freeview signal were sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communcations Act 2003; and that there is no public interest test to compel disclosure of that information under sections 41 and 44. Ofcom’s letter dated 27 September 2010 said:
"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 (CA) 2003. Section 44 is an absolute exemption under the Act and does not require a public interest test."
28 September 2010
Follow up request to Ofcom for withheld information
At this point we get into somewhat tedious regulatory alphanumeric soup.
We explained in this note that the courts have recognised that there is a public interest test in relation to Section 41 exemptions, despite Ofcom’s advice to the contrary. (This is explicit in paragraph 2.3 of the statute’s full exemptions guidance on how s41 should be interpreted http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/foi/guidance/exguide/sec41/chap02.htm).
It is our 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 raises the possibilty 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 (as stated by Ofcom in their decision to approve Freeview HD DRM in June 2010), 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.
S44 of the FOIA + S393(1) of the Communications Act seem to indicate Ofcom is prohibited from disclosing information obtained about a business. But section 393(2) says this (i.e.section 393(1)) does not apply to any disclosure of information which is made “for the purpose of facilitating the carrying out by OFCOM of any of their functions”.
Additionally section 393(6) of the Act says section 393 cannot be used to limit matters included in an Ofcom report and, in particular, matters related to Ofcom's duty to publish and take account of research and to Ofcom's publication of information and advice for consumers; both of which arguably relate to the Freeview DRM decision.
Stasis until 2 February 2011
At this stage Ofcom effectively went into lockdown with the re-organisation brought upon them by the coalition government cuts. Trying to be sensitive to the traumas associated with such circumstances we decided not to press for further answers until the new year. We sent them a reminder on 2 February 2011 and, in fairness, they then responded within a week.
7 February 2011
Ofcom’s final response withholding the key information.
They ignore our section 41 FOIA arguments and reject our section 393 CA arguments. They add that disclosing information in breach of section 393(1) “may constitute a criminal offence”.
Sections 393(4) and (5) give lists of “functions”, “enactments and instruments” relevant to section 393. The Freedom of Information Act is not included in these lists. This enables Ofcom to deduce, bizarrely if logically, that (and I quote):
“disclosure under FOIA is not a function for which Ofcom can disclose information”
Hilarity ensues.
They also advise us to take it up with the Information Commissioners Office if we’re still not happy. It is fair to say we are not happy, even if the their final conclusion, taken in isolation, is rather amusing.
In brief –
Open letters to Ofcom and BBC Trust Chairman (March – May 2010)
Ofcom approve HD lockdown (June 2010)
FoI ping pong (Aug 2010 – Feb 2011) –
Us: We’d like to see the secret BBC, ITV and Channel 4 information that convinced Ofcom to lock down HD Freeview with DRM please.
Ofcom: No. S41 & s 44 of the FOIA and s393(1) of the Communications Act say we don’t have to disclose this, even if it’s in the public interest to do so.
Us: Er courts and statutory guidance say s41 doesn’t have an absolute public interest exemption; and s393(2) of the Communications Act says you can’t use s393(1) as an excuse for withholding information if you’re fulfilling your public interest obligations by doing so.
So we’d like to see the secret BBC, ITV and Channel 4 information please, especially since you mentioned how keen they were to protect the public interest with their submissions.
Ofcom: No. S41 is complicated so let’s ignore that (implicit not explicit). WARNING – it may be a CRIME to tell you what you want to know. S44 FoIA provides a great excuse not to tell you anything because “Section 44 is an absolute exemption under the FoIA and does not require a public interest test” Anyway we see your s393(2) Communications Act loophole and raise you a s393(4)&(5) slam dunk. And (with a very straight face can say) therefore “disclosure under FOIA is not a function for which Ofcom can disclose information.”
Now I realise the "In brief" summary of the FoI communications with Ofcom is a little colourful and I certainly wouldn't want to impugn the motives of dedicated public servants in Ofcom who are doing a tough job in straitened circumstances. I would like to know, however, what happened within Ofcom in late 2009 to make them change their long standing opposition to BBC/Freeview DRM, to the extent that they then quickly launched a public consultation about how brilliant DRM was. Also, if the secret arguments of the BBC, Channel 4 and ITV are so compelling as to be a primary factor in convincing Ofcom that DRM is in the public interest, why can't the public have access to these documents?
If you're interested in a little more detail on the saga, my blogpost reactions as it unfolded are here. We haven't decided yet whether to take the matter up with the Information Commissioner.
Update: Apparently there was a problem with the hyperlinks in this post. Hopefully that is now fixed.
If you're interested in a little more detail on the saga, my blogpost reactions as it unfolded are here. We haven't decided yet whether to take the matter up with the Information Commissioner.
Update: Apparently there was a problem with the hyperlinks in this post. Hopefully that is now fixed.
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