Richard Taylor uses this request in a response to a BBC trust consultation about license fee collection: http://www.rtaylor.co.uk/bbc-trust-revie...

I have referred this to the ICO.

Eventual response from the ICO:

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I write regarding the above complaint you submitted to the Information Commissioner's Office (the 'ICO'). The complaint has been allocated to me for consideration.

Your complaint relates to your request for information to the BBC of 3 July 2008 for information relating to the use of search warrants for the purposes of TV Licensing enforcement.

I apologise for the delay in your case being allocated to a case officer. As you may be aware, all complaints about the BBC were put on hold pending a decision of the High Court in relation to the BBC's coverage by the Act. Since the decision was handed down in October, we have been working through the caseload as quickly as possible. However, I apologise for the delay since you referred your complaint to the ICO.

The complaint concerns the BBC's response to your request of 3 July 2008:

“…for each of the last 10 years, broken down by year, the number of search warrants obtained by the BBC or its agents to look for television reception equipment.”

The BBC responded on 30 July 2008 and withheld the information under sections 31(1) (a), (b), (d) and (g) of the Act, relating to law enforcement. It also considered that the public interest in maintaining the exemption outweighed the public interest in disclosure. This decision was upheld by the BBC's internal review.

Having considered the nature of the request and the arguments the BBC has provided in support of its decision, I consider that the BBC was entitled to withhold the information under sections 31 (a), (b), (d) and (g) of the Act. I also consider that in this case the public interest in maintaining the exemption outweighs the public interest in disclosure. Therefore, the BBC is not required to disclose the requested information.

In its internal review response the BBC argued that disclosing a breakdown of the number of search warrants used in relation to its enforcement of the TV Licence would be likely to influence public perceptions of detection and prevention tactics. It argued that this would, in turn, be likely to affect public behaviour regarding payment of the licence fee. The Commissioner notes that such a change in perception could lead to an increase in the rate of TV licence fee evasion, and therefore accepts that disclosure of the requested information would prejudice the prevention or detection of crime, the prosecution of offenders, the assessment or collection of tax and the exercise by the BBC of its functions for the purpose of collecting TV licence fees.

In a previous Decision Notice issued by the Commissioner relating to TV Licensing and section 31(1) of the Act, the Commissioner found that the BBC was entitled to withhold the requested information for similar reasons. The information in that case was the number of detection devices possessed by the BBC and how often they are deployed. The request in this case also concerns statistical information about the methods and tactics relating to TV licence enforcement activity and I consider that many of the same arguments apply. The Decision Notice referred to can be accessed via:

http://www.ico.gov.uk/upload/documents/d...

In your complaint to the ICO, you asked us to consider whether the BBC was justified in its refusal to provide information about the number of search warrants obtained. In view of the facts of the case, I consider it was correct to state that the requested information engages the exemptions cited under section 31(1) of the Act. The arguments provided in its internal review response are in line with Decision Notices the Commissioner has issued upholding BBC decisions to withhold similar information, as detailed above.

I note that you argued in your request for an internal review of 30 July 2008 that there would, over time, be a reduction in the prejudice caused by disclosure of the number of search warrants. The BBC argued that there had not been a substantial change of policy regarding the use of search warrants in the requested ten year period and that therefore the number of warrants issued in one year is likely to correlate with the number in previous and subsequent years. In view of the arguments put forward, I consider that disclosing the number of search warrants obtained ten years prior to the request would be no less prejudicial to the process of collecting the licence fee than, say, the number obtain one or two years prior to the request.

Public interest test

Section 31 is a qualified exemption and therefore the Commissioner must decide if the public interest in maintaining the exemption outweighs the public interest in disclosure. I consider that many of the arguments provided in the BBC's internal review response are relevant and it has correctly judged that the public interest test favours maintaining the exemption in this case.

The BBC has outlined that it considers there are public interest factors in disclosure of the requested information in that the BBC is seen to be exercising its function to apply for search warrants appropriately and proportionately, that the public may increase its understanding of the BBC's use of its statutory powers in relation to collection of the TV licence fee, and that public funds are being appropriately applied towards enforcing compliance with payment of the licence fee.

However, the BBC also considered that strong factors in favour of maintaining the exemption include the importance of maintaining effective deterrence of licence fee evasion. The Commissioner notes that there is a public interest in ensuring that the TV licensing system is efficiently run and the licence fee collected. As detailed above, the Commissioner agrees that the disclosure of the number of search warrants issued would prejudice the BBC's activity in enforcing the licence fee. Therefore disclosure would undermine the public interest in the successful collection of the licence fee and the public interest in the detection of crime. In view of this, the Commissioner considers there is a strong public interest in the maintenance of the exemption in this case.

I consider there is also a public interest in the BBC receiving the full level of funding for its activities via the licence fee. Additionally, there is a public interest in keeping the cost of enforcement activities to a minimum so that those funds can be directed to programming. The disclosure of the information would undermine the BBC's activities to ensure the collection of funds. For these reasons I consider that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Conclusions

In view of the above, I will be recommending that the Commissioner upholds the BBC's decision to withhold the requested information in this case.

I would be grateful if you could consider whether, in view of the information above and the previous Decision Notice issued by the Commissioner, you may be prepared to agree to an informal resolution of this complaint.

If you are not prepared to agree to an informal resolution of the complaint, I will be recommending that the Commissioner issues a formal Decision Notice on the same basis as the considerations outlined in this email. However, I do not consider that a Decision Notice would serve any useful purpose in this case as it would not require the BBC to take any further steps.

If you wish for a Decision Notice to be issued, I would be grateful if you could respond within ten working days, i.e. by 4 January 2010. If I do not hear from you within this timeframe, I shall assume that you are happy to resolve the case informally.

I hope you find this information useful.

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My plan is to reply along the following lines. Other suggestions or comments welcomed before I make this response.

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I have read the prior Decision Notice to which you refer, but I do not agree with your assertion that many of the same arguments should apply in this case.

That case referred primarily to internal procedures within the BBC relating to TV licensing. My request related solely to search warrants, which are issued by the courts. It is, of course, a key principle of UK law that under normal circumstances it is abhorrent that court proceedings be secret.

As such I cannot agree to your proposed informal resolution of this matter, and would request that you proceed with issuing a formal Decision Notice.

Dear Richard,

In relation to the intransigence of the BBC and unhelpfulness of the ICO about releasing the information, can I suggest you write to the part of the government which deals with oversight of the BBC - the Dept of Culture, Media and Sport (DCMS). I recall a recent newspaper article (possibly Nov 2009)about the TV Licensing contract being withdrawn from the company engaged by the BBC, because of the inappropriate over-zealousness of the company's enforcement officers, following an investigation by the Parliamentary Select Committee for Culture, Media and Sport. The DCMS and the Select Committee may take a different view to the ICO and direct the BBC to release the information to you.

If that fails you could write to the Ministry of Justice (or whichever ministry oversees the magistrates'court system, where warrants are obtained, in England and Wales) and ask the Ministry for the information. You may have to apply to the Northern Ireland Office and the Scottish Office for the same information covering Northern Ireland and Scotland respectively.

Good Luck.

Mark Lawrence
(jrmlawrence@hotmail.com)