Mr John Walker
Via e-mail: [FOI #13835 email]
24 July 2009
Dear Mr Walker,
Freedom of Information Request - RFI20090936
Thank you for your request under the Freedom of Information Act 2000 (“the Act”) received on 28
June 2009, seeking the following information:
Without giving names, please supply details of the pay and expenses for 2008 for an average BBC
TV news reader.
The BBC will not be providing you with the information you requested as we consider that it is not
covered by the Freedom of Information Act 2000 (“the Act”); further, even if the information was
covered by the Act, it would be exempt from disclosure under sections 40 (personal data) and 43(2)
of the Act because to do so would prejudice the commercial interests of the BBC.
Scope of the Act
The BBC and the other public service broadcasters are covered by the Act only in respect of
information held for purposes “other than those of journalism, art or literature” (see Schedule I, Part
VI of the Act). This means that the BBC is not obliged to supply information held for the purposes of
creating output or which is closely associated with such creative activities. The BBC considers that
this includes information about the costs involved in creating its output, including information relating
to payments made to talent.1
1 For more information about how the Act applies to the BBC please see www.bbc.co.uk/foi Please note that this guidance is not
intended to be a comprehensive legal interpretation of how the Act applies to the BBC.
Recent decision of the Information Commissioner
The BBC notes the view of the Information Commissioner in recent decisions regarding production
cost information, being that the Commissioner considers that this information does fall within the
scope of the Act. However, in a recent decision on talent costs, which pertained to payments made
to individuals, the Commissioner concluded that the information was exempt from disclosure under
section 40(2) of the Act as its disclosure would be a breach of the Data Protection Act.2
The BBC’s approach to this case
The BBC does not agree with the Commissioner’s decision on the scope of the Act and reserves its
position on the matter; however, the BBC considers that in the event of a similar finding by the
Commissioner in this case, the information you have requested would also be exempt under the Act
under section 40 (personal data) and 43(2) (prejudice to commercial interests).
Section 40
We have withheld some information under section 40 (personal data) of the Act, where individuals
can be identified in relation to what they are paid. These individuals would not expect this
information to be made public and that expectation is a reasonable one - they are not responsible for
large amounts of public money, nor do they have policy or managerial responsibilities at the BBC -
and therefore to do so would be unfair and a breach of the Data Protection Act.
Section 43(2)
We have withheld aggregate talent cost information under section 43(2) of the Act as disclosure
would prejudice the commercial interests of the BBC. This is likely to have four prejudicial effects on
the BBC. Firstly, disclosing would provide the BBC’s competitors with valuable pricing information
about the cost of engaging these individuals. The BBC would not receive equivalent information as
the vast majority of the BBC’s competitors are not subject to the Act and disclosure would give them
a competitive advantage and increase the likelihood of the BBC’s being outbid for talent.
Secondly, disclosing information about the cost of talent is likely to impact negatively upon the BBC's
bargaining position in negotiations for talent as it is likely to result in a ratchet effect among bids from
talent itself. Since talent will know that a minimum level of funds is available, there will be an incentive
to bid up to that level when previously it may have bid below it.
Thirdly, disclosing the cost of talent to the BBC is likely to discourage talent from contracting with the
BBC vis-à-vis its commercial rivals, due to the increased risk of publicity regarding their earnings.
Again, since the BBC is one of a small group of broadcasters that is subject to the disclosure
obligations of FOIA, the cost-benefit of contracting with the BBC vis-à-vis a commercial broadcaster
that is not subject to those obligations weighs heavier on the cost side.
2 FS50070465
The effects described above are likely to cause grave prejudice of the BBC; they would be likely to
result in a choice between losing programmes and suffering a drop in the quality of our programming;
or increasing spending in order to retain programmes and thereby suffering a drop in value for money
to the licence payer.
Consideration of the public interest
As section 43 is a qualified exemption, the BBC has considered the public interest factors in this case
in accordance with section 2(2) of the Act: specifically, whether in all the circumstances of the case,
the public interest in maintaining the exemption outweighs the public interest in disclosing the
information.
There is a clear public interest in ensuring that the BBC is able to provide quality programming and
value for money in respect of its use of the licence fee. Both these objectives will be threatened if a
presumption is created in favour of the general disclosure of information relating to talent costs, for
the reasons set out above.
Against this, there is little public interest in the disclosure of talent cost information as this information
only enables the public to take an informed view of whether the BBC is contracting with talent on a
competitive basis if it is in possession of talent cost information relating to commercial broadcasters.
Since this information is not publicly available, information relating to the BBC is of little use.
In any event, the general public interest in the transparency and accountability of the BBC in respect
of its use of the licence fee is served by a broad range of oversight mechanisms, internal and external.
These include the oversight of the BBC Trust, whose recent review into this issue demonstrated that
the BBC was not distorting the market for talent, the Executive Board, the responsibilities of which
include conducting the BBC’s operational affairs in a manner best designed to ensure value for money
(Article 38(1)(h) of the Charter), Ofcom and the fair trading regime and competition law in general.
Indeed, in the interests of transparency and accountability, certain limited information on expenditure
is provided in the Annual Report. Detail beyond this threatens to pose considerable harm to the
BBC’s commercial interests, without offering a proportionate benefit to the public.
We are satisfied, in terms of section 2 of the Act, that in all the circumstances of this case, the public
interest in maintaining the exemption outweighs the public interest in disclosing the information.
Thus, the BBC believes that the public interest is best served by allowing the BBC to continue to
compete on an equal basis with, the rest of the market, so that normal market forces may take effect
to the benefit of the general public.
Appeal Rights
The BBC does not offer an internal review when the information requested is not covered by the
Act. However, if you are not satisfied with our response, you do have the right to appeal to the
Information Commissioner. The contact details are: Information Commissioner's Office, Wycliffe
House, Water Lane, Wilmslow, Cheshire, SK9 5AF, telephone 01625 545 700 or see
www.informationcommissioner.gov.uk In the event of a finding by the Information Commissioner that
the Act does apply in this case, should you then wish, the BBC is prepared to undertake an internal
review of our decision on the application of section 43 (commercial prejudice) to the information you
have requested.
Yours sincerely
Mary Geoghegan
BBC People
