Dear Mr Farber,

Thank you for your request for information on 21 January 2023.

We are writing to advise you that following a search of our paper and
electronic records, we have established that some of the information you
requested is held.

The information we hold in scope of your request is exempt under section
31(1)(g) of the Freedom of Information Act by way of s31(2)(b).
Information is exempt under section 31(1)(g) if its disclosure would, or
would be likely to, prejudice the exercise by any public authority of its
functions for the purposes specified in section 31(2)(b). The purposes
referred to in section 31(2)(b) are that of ascertaining whether any
person is responsible for any conduct that is improper.

The Office of the Commissioner for Public Appointments (OCPA) has
appointed Mr Adam Heppinstall KC to lead on its consideration of the
public appointment process that led to the appointment of the BBC Chair in
February 2021. This will be carried out under the provisions of the Public
Appointments Order in Council 2019 - namely to provide assurance on
whether the appointment process was conducted in line with the
government’s Governance Code for Public Appointments.

The exemption in section 31 is a qualified exemption and we have
considered whether the balance of the public interest favours releasing or
withholding this information. There is a general public interest in
disclosure of information and we recognise that openness in government may
increase public trust in and engagement with the government. We recognise
that there is a public interest in assuring the public that the correct
practices and procedures were followed with regards to the appointment of
the BBC Chair. We have weighed up these public interests against a strong
public interest in concluding our inquiry with all of the evidence at
OCPA’s disposal, without prejudicing or premeditating its outcome by
releasing certain documents, including material that contains personal and
confidential information (see below).  If OCPA investigations are
undermined and their effectiveness compromised as a consequence, it could
result in improper conduct not being appropriately addressed, which would
not be in the public interest. Additionally, a formal inquiry is already
underway into this appointment, which will meet the public interest in
reassuring the public that the proper procedures were followed in this
case. Taking into account all the circumstances of this case, we have
concluded that the balance of the public interest favours withholding this
information.

Some of the information you requested (application form and supporting
statement) is being withheld under section 40 of the Freedom of
Information Act. Section 40(2) which exempts personal information from
disclosure if that information relates to [someone other than] the
applicant, and if disclosure of that information would, amongst other
things, contravene one of the data protection principles in Article 5(1)
of the UK General Data Protection Regulation and section 34(1) of the Data
Protection Act 2018.

In this case, we believe disclosure would contravene the first data
protection principle, which provides that processing of personal data must
be lawful, fair and transparent. We consider that disclosure of the
information would contravene principle A under article 5(1)(a) of the
General Data Protection Regulation (GDPR) which requires that personal
data should be processed lawfully, fairly, and transparently. We have
considered the legitimate interests in disclosure and have found that on
balance there is no overriding legitimate interest or necessity in
disclosure that overrides the reasonable expectations of privacy of the
individual concerned. Section 40(2) is an absolute exemption and the OCPA
is not obliged to consider whether the public interest favours disclosing
the information.

This information you have requested is also being withheld because it is
exempt under section 41(1) of the Freedom of Information Act. Section
41(1) exempts information, where disclosure would constitute an actionable
breach of confidence. Section 41(1) is an absolute exemption for the
purposes of the Freedom of Information Act but, in reaching our decision
to withhold this information, OCPA has taken into account that there is a
public interest defence to an action for breach of confidence. We are
satisfied that disclosure of the information requested would constitute an
actionable breach of confidence and that the OCPA could not rely on the
defence that an overriding public interest justified breaching its duty of
confidence. The general public interest in having information made
available [together with other factors in favour of disclosure] is not a
compelling public interest capable of overriding the very strong public
interest in maintaining the confidentiality of this information.

Some of the information relevant to your request has been released by the
DCMS Select Committee that might be of assistance in relevance to the
request. Should it be useful, please find links to this information which
is in available online:

[1]The Commissioner for Public Appointments has written to the Chair of
the DCMS Select Committee, Julian Knight MP, regarding the government’s
preferred candidate for BBC Chair.

[2]DCMS Select Committee pre appointment scrutiny hearing for BBC Chair.

More information on the announcement of the inquiry is [3]here.

If this response is not satisfactory or you wish to request an internal
review please contact:
The Chief Executive
Office of the Commissioner for Public Appointments.
1 Horse Guards Road
London
SW1A 2HQ
E-mail: [4][OCPA request email]

Please note that the Chief Executive will not normally accept an
application for internal review if it is received more than two months
after the date of the reply. If subsequently you are not content with the
outcome of the internal review, you may apply directly to the Information
Commissioner. Generally, the Information Commissioner cannot make a
decision unless the complaints procedure has been exhausted.

The Information Commissioner can be contacted at:

The Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
SK9 5AF

Kind Regards
The Office of the Commissioner for Public Appointments
[5]http://publicappointmentscommissioner.in...
Follow us: @publicapptscomm
We are committed to respecting your privacy and safety in collecting and
processing your personal data. For further information [6]see.

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