Freedom of Information Internal Review Decision
Internal Reviewer:
David Attfield
Reference:
RFI20100110
–
IR2010005
Date:
8
March
2010
Original request and the BBC’s decision:
The requestor asked that the BBC makes available the number of search warrants that were
applied for and that were granted in the last year for the purpose of searching for television
receiving equipment.
The BBC, in its initial response to this request, determined that the information sought fell
within the ‘law enforcement’ exemptions set out in sections 31 (1) (a), (b), (d) and (g) and
section 31 (2) (a) of the Freedom of information Act (“the Act”) . This was because the
BBC claimed that disclosure would, or would be likely to, prejudice:
1.
The prevention or detection of crime (Section 31 (1) (a)),
2.
The apprehension or prosecution of offenders (Section 31 (1) (b)),
3.
The collection of the license fee (Section 31 (1) (d)),
4.
The BBC’s ability to discharge its functions of ascertaining whether any
person has failed to comply with the law (Section 31 (1) (g) and Section 31 (2) (a)).
The requestor has now asked that there be a review of the BBC’s decision to withhold the
requested information.
Issues on review
1.
Whether the Section 31 ‘law enforcement’ exemption applies to the information
sought by the requestor because one or more of the requirements set out in Section
31 (1) (a) to (g) is satisfied.
2.
If the Section 31 exemption does apply, whether disclosure should nonetheless be
given because there is an overriding public interest in disclosure.
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Background
In undertaking this review, I have considered the provisions of the Act and the guidance
issued by the Department for Constitutional Affairs and the Information Commissioner’s
Office. I have also considered information provided to me on a confidential basis by the
BBC’s Licence Fee Unit together with other publicly available information.
1.
Did the BBC correctly apply the Section 31 (law enforcement) exemption
in this case?
I have noted the guidance on the application of Section 31 issued by the Department for
Constitutional Affairs which states that prejudicial disclosures can include information
relating to strategies and tactics in seeking to prevent crime and that such disclosure has a
high potential to undermine legitimate objectives carried out in the public interest. The
guidance makes clear that this section is not confined solely to the police but also to other
public authorities, which would include the BBC in its capacity as the Licensing Authority.
I have also noted guidance issued by the Information Commissioner’s Office on the
application of Section 31 and the ICO’s Decision Notice of 19 May 2008 (Ref. FS50137475).
Together, these make clear that the Section 31 exemption will apply where releasing
information may well prejudice efforts to prevent crime. The Decision Notice of 19 May
2008 is closely analogous as it concerns a request for information regarding the use of TV
detector vans. In that case, the Information Commissioner found that a change in the
public’s perception of the likelihood of being caught for licence fee evasion could well result
in greater levels of evasion which would prejudice the prevention of crime.
I am mindful of the fact that the requestor is not seeking wide ranging information about
detection and enforcement but has focussed the request on the number of search warrants
applied for and granted. However, I have seen strong evidence that, whilst the licence fee
enjoys considerable support, there is a body of the public who object to having to pay it
and/or who seek to avoid paying it. There is a willingness amongst some of these people to
share information about how to avoid payment and the risks of being caught for evasion,
which includes online discussions about the detection and enforcement tactics deployed in
order to collect the licence fee. Were specific information about the prevalence of
detection and enforcement tactics to be disclosed, there is no doubt that this would help
provide a clearer picture of TV Licensing’s enforcement and detection practices which
would be of assistance to anyone intending to attempt evasion.
Taking into account the factors and the guidance referred to above, I am satisfied that the
information sought, if disclosed, is likely to influence the public’s perception of detection
tactics and is likely in turn to impact on public behaviour regarding the voluntary paying of
the TV licence fee. Because of this, it is my view that disclosure of the information would be
likely to prejudice the prevention or detection of crime; the apprehension or prosecution of
offenders; and the ability of the BBC as the Licensing Authority to collect the licence fee.
It is also my view that disclosure of the information would prejudice the BBC in its role in
determining whether individuals have failed to comply with the law in respect of the TV
licence.
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The information sought in the first request, therefore, is in my view exempt information
under Section 31 (1) (a), (b) and (d) of the Act and under Section 31 (1) (g) and under
Section 31 (2) (a).
2.
Is there an overriding wider public interest in disclosure?
There are significant public interest factors in favour of disclosure of the information sought,
which I identify as:
1.
Ensuring that the BBC, in applying for search warrants, is exercising its Licensing
Authority functions appropriately and proportionately.
2.
Providing the public with a better understanding of the BBC’s use of its statutory
powers as the Licensing Authority relating to the collection of the license fee.
3.
Allowing scrutiny of whether public funds are being appropriately applied towards
ensuring compliance with TV licensing obligations.
However, in assessing the extent of this public interest, it is important to bear in mind the
other means by which these public interests are to an extent fulfilled. I have in mind in
particular the fact that search warrants are subject to strict requirements and are granted by
a neutral third party (a magistrate in the case of England and Wales and a sheriff in Scotland)
who considers the evidence and the public interest in each individual case. This helps ensure
the appropriate exercise of powers to enter homes under a search warrant.
Whilst the magistrate or sheriff would not assess the underlying policy regarding the
obtaining of search warrants, other information issued by the BBC ensures that the public
has an understanding of the BBC’s use of its statutory powers relating to the collection of
the licence fee. This includes information on the BBC’s policy on search warrants. Further,
the public interest in ensuring that value for money is being obtained is to at least some
extent satisfied by the National Audit Office which assesses and reports on the value for
money of the BBC’s collection and enforcement arrangements. Further, additional
information relating to the cost of the TV licensing system is published by the BBC including
in the BBC’s annual report and in the TV licensing annual review. Thus the public is able to
assess the whether the TV Licensing system is efficiently run and offers value for money.
In light of the roles performed by the courts and by the National Audit Office, and the
information already published by the BBC, the following countervailing factors in my view
outweigh the factors which support disclosure:
1.
The importance of maintaining effective deterrence. This is a key aspect of TV licence
enforcement. Without effective deterrence, the cost of TV licence collection and
enforcement would undoubtedly increase which would not be in the interests of TV
licence fee payers. I am satisfied that disclosure of the information sought (either on
its own or combined with other information relating to detection and enforcement)
would undermine this deterrence.
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2.
It is in the public interest that crimes are detected and, where appropriate,
prosecuted. I am satisfied that disclosure of the information sought, in particular if
combined with other information relating to detection and enforcement, is likely to
influence the behaviour of a body of the public with regard to complying with their
TV licence obligations and that this would prejudice the detection and prosecution of
TV licence fee evaders.
3.
There is a public interest in the BBC being able to collect all of the money it is
entitled to by way of the licence fee so as to ensure that the BBC receives the full
level of funds for its activities. The disclosure of the information sought, in particular
if combined with other information relating to detection and enforcement, is likely to
impact negatively on the amount of money that the BBC is able to collect.
Decision
I endorse the BBC’s original decision that the information sought is exempt because its
disclosure would, or would be likely to, prejudice the prevention or detection of crime; the
apprehension or prosecution of offenders; and the ability of the BBC as the Licensing
Authority to collect the licence fee. The information would also be likely to prejudice the
BBC in its role in determining whether individuals have failed to comply with the law in
respect of the TV licence. In all the circumstances, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.
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