Original reference: 1-295597565
Internal review reference: 1-296429831
13 July 2015
[Ofcom request email]
Freedom of Information: Internal Review
Dear Mr Ward
Thank you for your recent request for an internal review of your Freedom of Information
Act (the Act) request.
Below I have set out the chronology of your case followed by my findings:
On 19 May, you requested: I would like to understand the background to your decision regarding the instruction issued
by Global Radio's senior managers to the news editors of all their radio stations ordering
them to stop coverage of the HSBC tax scandal.
1) You said that no 'third parties' were involved. Did your investigation also consider
the possibility that senior figures working within Global Radio may have exercised
improper influence over the editorial decision making in the newsrooms?
2) Did you ask Global Radio if there had been any previous situations where an
instruction to drop a news story had been issued by senior management to all the
3) What were the reasons that you accepted from Global Radio as justification for the
decision to instruct news editors to drop the story?
Ofcom replied on 27 May stating that: I am writing to advise you that Ofcom cannot disclose the information you requested,
because your request falls under the exemption set out in Section 44 of the Act.
Section 44 of the Act prevents organisations releasing information if another Act has said
that it shouldn’t. The Communications Act 2003 is such an Act.
So that Ofcom can operate effectively it needs to be able to handle and share confidential
correspondence with the businesses and about the businesses it regulates. If Ofcom was
to make all this correspondence public it could undermine the confidence that regulated
industries have that they can be frank and candid without the fear that these views will be
published. Section 393 of the Communications Act anticipated this and prevents Ofcom
releasing information if the information is about a particular business, unless it helps
Ofcom to carry out its duties.
On 31 May you asked for an internal review of Ofcom’s handling of this case, stating: I am writing to request an internal review of Office of Communications's handling of my
FOI request 'The background to the decision not to move forward with a complaint against
Global Radio regarding suspension of news coverage of HSBC tax scandal.'.
My request was refused on the grounds that OFCOM would have to reveal details of
confidential correspondence with Global Radio. I would argue that only one of the my
questions asked OFCOM to reveal information relating to Global Radio's responses and
even that did not actually involve any commercially sensitive information. The other two
questions referred to OFCOM's approach to their investigation. I want to know how
OFCOM approached the investigation of the initial complaint, the areas they felt they
should consider, and the questions they asked. My FOI request should be allowed
because it relates to the issue of whether or not OFCOM has conducted this investigation
I have reviewed all the correspondence in this case. It appears from your request that you
consider the key issue in this case is the applicability of S.44 of the Act and S.393 of the
Communications Act to the information you requested. I have therefore concentrated my
review on this area.
S.44 of the Communications Act allows an exemption to the disclosure provisions within
the Act, if it is prohibited by another ‘enactment’. Such an enactment is S.393 of the
Communications Act – which prohibits disclosure of information, if it:
is information with respect of a particular business
was obtained by the exercise of a power conferred by a) this Act
the business concerned continues to be in business
the business concerned does not provide consent.
It is clear from your request that the information you have requested all concerned a
business, Global Radio. Ofcom has a duty under the Communications Act S.325 to
‘establish procedures for the handling and resolution of complaints about the observance
of standards’. It was under this power, that Ofcom received or created the information
concerned. Global Radio continues business and Global Radio has not provided consent
for the release of this information.
Section 393 of the Communications Act, relates to all information which satisfies the
criteria set out above. It does not only apply to information that is either ‘confidential’ or
‘commercially sensitive’. Case law has clarified that it should be defined widely and not
limited to information Ofcom has requested.
Given the type of information requested and the conditions of S.393 set out above, I find
that Ofcom has correctly applied the S.44 exemption in this case.
I should also apologise for the addition of an incorrect Annex at the end of your response.
Ofcom is not citing S.43 (Commercial confidentiality) in this case.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information
Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office