Freedom of Information Internal Review Decision
Internal Reviewer: Kate Leece, Head Of Legal & Business Affairs - TV RBA New Media
Reference: Internal Review IR2008014
Date: 17 June 2008
Original Request:
“how much the public-service side of the BBC has spent on paid-for adverts on Web Search
Engines (e.g. Google Adwords) in 2007.”
The requester wrote in his request for internal review:
“I request an Internal Review of your rejection of my request, ref RFI20080201, for non-programme
related spend in 2007 on paid-for adverts on web search engines (including, but not restricted to
Google).”.
Issues on review:
The review concerns the application of the exemption under section 43 (2) (Commercial
Prejudice) of the FOIA and specifically whether the disclosure of the requested information
would be likely to prejudice the commercial position of the BBC and/or its media buying
agency MPG.
If the conclusion is that prejudice would, or would be likely to be caused, the review should
consider whether the public interest in disclosure outweighs the public interest in
maintaining the exemption and withholding the information.
Review:
The relevant exemption under the FOI Act is as follows:
Section 43 of the FOIA:
43 Commercial interests
(1) Information is exempt information if it constitutes a trade secret.
(2) Information is exempt information if its disclosure under this Act would, or would be
likely to, prejudice the commercial interests of any person (including the public authority
holding it).
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection
(2).
I have reviewed the Information Commissioner’s Office (ICO) Freedom of Information Act
Awareness Guidance No 5 (Commercial Interests) on the use of this exemption:
http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_
guides/awareness_guidance_5_v3_07_03_08.pdf
This states that
‘a commercial interest relates to a person’s ability to participate competitively in a
commercial activity, i.e. the purchase and sale of goods and services’. The Guidance note
recognises that a public authority will hold a wide range of information relating to the
procurement process for the supply of goods and services, including information about its
own position as purchaser, as well as that of third party suppliers who bid for work. It also
recognises that the release of information about the cost of goods and services can prejudice
both a public authority’s position as purchaser, and a third party’s position as the supplier of
those services, in the commercial marketplace.
In this case, the media buying industry is highly competitive and the release of pricing
information could prejudice the bargaining position of the BBC when next seeking media
buying services. Likewise release could prejudice the supplier’s position when submitting
competitive tenders to other purchasers in the future. Release of such information could
also damage the confidence that customers, suppliers and investors have in the company,
and have an adverse impact on its revenue.
In order to determine whether the disclosure of information would prejudice a commercial
interest, a public authority should in accordance with the Secretary of State’s Code of
Practice, consult with the parties likely to be effected by the disclosure. I can confirm that
the BBC did consult with its media buying agency, MPG, on this request and that MPG
expressed concern that disclosure of this information by the BBC would be damaging to
their commercial interests.
I have therefore concluded that disclosure of the requested information would, or would be
likely to prejudice the commercial interests of the BBC and/or MPG, and that section 43 (2)
should apply in this instance. I recognise that this is a qualified exemption and that the public
interest test therefore applies.
This was taken into account in the original response and I support the arguments for and
against disclosure as set out below:
In favour of disclosure, the BBC recognises that there is a public interest in the following:
• That there is transparency in the accountability of the BBC for public funds
• That the BBC is using public money effectively, and that the BBC is getting value for
money when purchasing goods and services
On the other hand, in considering factors that might weigh in favour of the public interest in
withholding, the BBC took into account:
• That the BBC maintains a strong bargaining position vis-à-vis suppliers during
contractual negotiations in order to ensure that the licence fee is spent effectively.
• It would not be in the public interest to disclose sensitive information about a
particular company if that information would be likely to be used by competitors to
gain a competitive advantage.
To this I would add that
• There is a public interest in ensuring that companies are able to compete fairly and
that there is competition for public sector contracts. Companies may be discouraged
from entering competitions run by public authorities if it resulted in disclosure of
their pricing.
Taking the above arguments into account, I confirm that I agree with the view taken that in
all the circumstances of the case, the public interest in maintaining the exemption outweighs
the public interest in disclosing the information.
Decision:
Following this review, I agree that the application of the exemption under Section 43 (2) of
the FOIA (Commercial Prejudice) should be applied in this case, and that in the
circumstances set out above, the public interest in maintaining the exemption outweighs the
public interest in disclosing the information.
