Freedom of Information Internal Review Decision
Internal Reviewer:
David Attfield - Litigation Lawyer, BBC
Reference:
RFI2008029
Date:
11th
September
2008
Original request and the BBC’s decision:
The requestor asked that, for each of the last 10 years, the BBC makes available the number
of search warrants obtained by the BBC or its agents to look for television reception
equipment. The requestor asked that this information be broken down by year.
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 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 under Section 31 of the Act. Accordingly, in this review I consider the
BBC’s responses to the first and third requests.
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 there is an overriding public interest
in disclosure.
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
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 by changing public perceptions
regarding the detection of crime and enforcement of the law.
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, which includes online discussions about the detection and enforcement tactics
deployed in order to collect the licence fee.
The information sought is likely to influence the public’s perception of detection tactics and is
likely, accordingly, 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.
The requestor argues that any such prejudice would reduce over time. However, the number
of search warrants in any one year is likely to correlate with the numbers in previous and
subsequent years. In the absence of information showing there has been a substantial
change of policy, I do not accept that the prejudice declines substantially over a 10 year
period.
It is also my view therefore 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. Therefore, the information sought in the first request is exempt information under
Section 31 (1) (a), (b) and (d) of the Act and under Section 31 (1) (g) and 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 is exercising its Licensing Authority functions appropriately
and proportionately, in particular relating to its policy of applying for search warrants.
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.
Ensuring that public funds are being appropriately and efficiently applied towards
ensuring compliance with TV licensing obligations.
2
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) who considers the
evidence and the public interest in each individual case. Whilst the magistrate (in England
and Wales) would not be required to 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 which includes 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.
In the context of the roles performed by these bodies and the information already published
by the BBC, there are in my view stronger countervailing factors against 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.
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.
3
