Evidence submitted by the British Broadcasting
Corporation (BBC)
EXECUTIVE SUMMARY
1. The BBC is submitting evidence of its
experiences as a requester and its experiences handling FOIA requests.
2. Since January 2005 numerous journalists and
programme-makers from across different parts of the BBC have sought
to make use of the Freedom of Information Act and the Environmental
Information Regulations to research material for broadcast. The
information obtained has led to a wide range of investigative
reports. Freedom of information has proved a useful tool enabling
our journalists to put into the public domain material which should
indeed be there.
3. Overall, the experience of BBC journalists
and programme-makers who have tried to use FOI is that the response
of public authorities is patchy and inconsistent, ranging from
those who are highly efficient and cooperative to those who are
neither. Nevertheless, there are indications that some of the
problems are being tackled.
4. The BBC's experience of handling FOIA requests
has been a challenging but rewarding experience. FOIA has strengthened
the BBC's ability to achieve the Board of Governors objective
of delivering greater accountability and transparency to licence
fee payers. However, FOIA has been resource intensive for the
BBC and time-consuming for all staff involved in handling requests.
5. From the point of view of a broadcaster and
a public authority for some purposes under FOIA, it is only possible
to make a preliminary assessment of the consequences of FOI. Until
there are more decisions from the Information Commissioner and
the Information Tribunal, and we know which refusals are being
upheld and which are being over-ruled, and until public authorities
are operating FOIA in "steady state" it is too early
to assess the real impact of freedom of information.
INTRODUCTION
6. The British Broadcasting Corporation ("the
BBC") is one of the most significant public service broadcasters
in the world. Its purpose is to enrich people's lives with programmes
and services that inform, educate and entertain. The BBC is funded
by the licence fee. Across the UK the BBC operates eight television
channels, ten radio networks, 46 local and national radio stations
and the online site bbc.co.uk. The BBC employs 22,000 staff across
more than 40 offices worldwide. The Executive Board, is responsible
for day to day management and the Board of Governors ensures accountability
to licence payers both directly and via Parliament.
7. The BBC is submitting evidence to this Committee
for two reasons. As a broadcaster it can offer evidence of its
experience as a requester. FOIA has already proved a useful tool
enabling BBC journalists to put into the public domain material
which should indeed be there. As a public authority, for some
purposes under FOIA, the BBC can offer evidence of its experience
of handling FOIA requests. One of the BBC's objectives is to deliver
greater transparency and accountability to licence fee payers.
FOIA presents an opportunity to strengthen delivery of this objective
and the BBC takes its responsibilities under FOIA seriously.
8. The BBC welcomes this inquiry. It believes
that regular, objective, evidence-based analysis of how FOIA is
operating in practice is necessary to ensure that the aims of
the legislation are met.
EXPERIENCE AS
A REQUESTER
9. Since January 2005 numerous journalists and
programme-makers from across different parts of the BBC have sought
to make use of the Freedom of Information Act and the Environmental
Information Regulations to research material for broadcast.
10. The information obtained has led to a wide
range of investigative reports. At the national network level
this includes the following:
— Many English secondary schools with
apparently improving GCSE results are actually doing worse in
English and Maths (BBC Radio 4 documentary).
— The House of Lords Appointments
Commission weakened the requirements large party donors have to
satisfy for it to approve their nominations as Peers (Politics
Show, BBC1).
— Surgeons and other hospital staff
disciplined over alcohol and drug-related incidents (Real Story,
BBC1).
— Internal Police guidelines advise
against breaking up illegal hunts and making arrests (Ten O'Clock
News, BBC1).
— The Metropolitan Police Special
Branch infiltrated and monitored the Anti-Apartheid Movement in
Britain for 25 years (BBC Radio 4 documentary).
— Vaccines for TB were manufactured
under-strength (Money Programme, BBC2).
— The Foreign Office tried to hide
the assistance it gave Israel in the 1950s with setting up a nuclear
weapons programme (Newsnight, BBC2).
— A growing number of women from overseas
are travelling to Britain to give birth in NHS hospitals (BBC
News Online).
— The airline catering company Gate
Gourmet was criticised by food hygiene inspectors (BBC Radio 4
documentary).
— Allegations of abuse and torture
by British intelligence officers in the years after World War
2 (Document, BBC Radio 4).
— Emails within a primary care trust
expressing concern that decisions were being overturned for political
reasons (Panorama, BBC1).
Reports in Scotland, Wales, Northern Ireland and
the English regions include the following:
— There were nine suspected homicides
involving people in the care of the Welsh NHS in under two years
(BBC Wales).
— Warnings over the future of the
lake which is the main source of Northern Ireland's drinking water
(BBC Northern Ireland)
— Very high hourly rates paid to Scottish
GPs for out-of-hours working (BBC Scotland)
— Children as young as seven caught
carrying knives in school (BBC East Midlands)
— The Nuclear Installations Inspectorate
expressed worries about the state of the graphite core at Oldbury
nuclear power station (BBC West)
11. The BBC believes that these reports are in
the public interest. They would have been much more difficult,
and in many cases impossible, without FOIA and/or the EIR. To
that extent freedom of information has proved a useful tool enabling
our journalists to put into the public domain material which should
indeed be there.
12. However, this is only part of the story.
The BBC's overall impression of how public authorities are implementing
FOI is that matters are patchy. Some authorities are efficient,
cooperative and happy to provide `advice and assistance' in accordance
with the Act. Others have been slow and in some cases obstructive.
13. Problems which have been encountered include:
— Cases where public authorities have
taken months to assess the public interest test (repeatedly extending
their own self-imposed deadlines).
— Cases where public authorities have
taken months to conduct internal reviews.
— Authorities which retain all material
covered by the request until they have decided on the public interest
test, when only some of the material is potentially relevant to
the exemption involved and the rest of it could have been supplied
much more quickly.
— Clearly unnecessary redactions (in
extreme cases, for example, where redactions of names have included
the names of prominent politicians, press officers and long dead
authors). Such redactions must add to the time and effort involved
in preparing the papers for release, and thus adds to the workload
quite unnecessarily.
— On occasions FOI officers in government
departments have complained informally to BBC journalists that
referring requests to the DCA's central clearing house has caused
substantial delays (for which the department itself is then blamed),
and in some cases the clearing house has stopped them from releasing
information which they themselves would be happy to disclose.
14. However, there are signs that some aspects
are improving and we recognise that in the first year of FOIA
everyone is learning from experience. In the first few months
of 2005 it was common to receive refusal notices which were simply
a blanket refusal to release certain categories of information
covered by qualified exemptions, without any attempt made to fulfil
the legal duty of assessing the public interest test. This is
now much rarer. Also in some cases the problem of delay is diminishing.
Certainly there are examples of public authorities which initially
seemed to have problems adapting to the Act but are now much better
organised and prompter in dealing with requests.
15. It is also worth noting that it is fairly
common on internal review to receive more information than originally
supplied. Perhaps this is a sign that the internal review system
is working. Perhaps it is also a sign that in some cases excessively
cautious officials are withholding information at the initial
stage that should readily have been supplied.
16. As for the Information Commissioner's Office,
BBC journalists have taken several complaints to the Commissioner.
Our experience has been, in common with other complainants that
we have had to wait a considerable period of time and often several
months before work has started on investigating our complaints.
17. To give one typical example (not the worst),
a complaint made to the ICO by one BBC journalist in September
2005 was not acted upon (beyond sending a standard acknowledgement)
until over four months later in January 2006, when the investigation
into it was started. In another case a BBC journalist complained
to the ICO about the Department of Health holding back some information
as intended for future publication, although they could give no
indication of when publication was planned. It took the ICO five
months to reject the complaint—which was just about the
same time that the Department took to get ready to publish the
information anyway.
18. However we are aware of a renewed determination
on the part of the Commissioner's Office to tackle the delays,
which Richard Thomas himself has acknowledged as excessive and
unsatisfactory. We see signs that this is being implemented, although
whether these current measures are sufficient remains to be seen.
19. Overall, the experience of BBC journalists
and programme-makers who have tried to use FOI is that the response
of public authorities is patchy and inconsistent, ranging from
those who are highly efficient and cooperative to those who are
neither. Nevertheless, there are indications that some of the
problems are being tackled.
20. More generally, from the journalistic point
of view it is only possible to make a preliminary assessment of
the consequences of FOI. Until there are more decisions from the
Information Commissioner and the Information Tribunal, and we
know which refusals are being upheld and which are being over-ruled,
it is too early to assess the real impact of freedom of information.
EXPERIENCE AS
AN AUTHORITY
21. The first year of FOIA has been a challenging
but rewarding experience. The Board of Governors objectives include
delivering greater accountability and transparency to licence
fee payers. FOIA has strengthened the BBC's ability to achieve
this objective. It has also provided further opportunities for
the BBC to interact with audiences. However, FOIA has been resource
intensive for the BBC and time- consuming for all staff involved
in handling requests.
22. In 2005 the BBC received 971 requests for
information that were treated as FOIA requests. 96% were handled
within 20 working days or extended legitimately under section
10. The BBC disclosed the information requested either fully or
partially in 64% of cases.
23. 69 (14%) cases were internally reviewed and
28 cases (2.9%) were appealed to the Information Commissioner.
24. We have found the ICO very slow to deal with
complaints but also helpful in terms of their availability and
desire to do their job thoroughly. We accept that some of the
delay has been caused by the unique issues surrounding FOIA at
the BBC. We also recognise that 2005 was a challenging year for
the ICO and that the office was dealing with a very large number
of complaints. We welcome the recently introduced procedures to
clear the backlog of complaints.
PUBLIC SERVICE
BROADCASTERS
25. As public service broadcasters, the BBC,
Channel 4 and S4C, are in a unique position under FOIA because
they are only subject to FOIA in respect of certain information.
26. Schedule 1 to FOIA provides that the legislation
applies to the BBC, as to S4C and Channel 4, only in "respect
of information held for the purposes other than those of journalism
art or literature".
27. The fact that some information is information
is covered by FOIA, does not undermine our objective to be open
and transparent. The BBC makes a huge amount of information about
content production, scheduling and commissioning across all platforms
available to the public. For example, bbc.co.uk is the largest
content website in Europe, offering more than a million pages
of quality public service content. BBC Information call centres
handle 2.5 million contacts per year from the public in three
offices around the UK but this and other provision of information
is on a voluntary basis, rather than through the prescriptive
statutory process established by FOIA.
28. The BBC's commercial subsidiaries are specifically
excluded from FOIA under section 6(2)(1)(ii) although FOIA does
apply to information held on behalf of the BBC by the subsidiaries
or any contractor. The Environmental Information Regulations 2004
do not apply to the BBC.
ORGANISATIONAL STRUCTURE
29. The Information Policy and Compliance Team
("IPC") co ordinates FOIA requests, provides policy
advice and approves every FOI response. It is also responsible
for compliance with the Data Protection Act 1998 and other information
policy issues. Five members of the team work on FOIA and the team
reports to the General Legal Counsel and the Director of Strategy.
30. It works closely with BBC's Regulatory Legal
Department and a network of divisional representatives across
13 Divisions and the Nations and Regions. This structure works
well. It enables central control and oversight of process and
policy while at the same time ensuring that FOIA requests are
handled by those who are best placed to analyse the information
in question.
POSITIVE BENEFITS
31. The purpose of FOIA is to make public authorities
more transparent and accountable for spending public money. There
is some evidence that FOIA is already contributing to a more transparent
and accountable BBC. Although it is too early to draw firm conclusions
and success is difficult to measure.
32. The BBC has disclosed a significant amount
of information that would not previously have been made available.
The more significant disclosures include; the diaries of the Chairman
and the Director General, expenses for Directors and Governors;
over 200 documents surrounding the decisions on the BBC corporate
change programme; spending on management consultants; and background
information on high value procurement.
33. We publish disclosures that are of public
interest on the disclosure log which currently includes approximately
700 documents that were not previously in the public domain. In
2005 367,912 documents were downloaded from the BBC's publication
scheme and in the month of November the page impressions on the
scheme peaked at 115, 000.
34. In May 2005, the Board of Governors agreed
to publish minutes of its meetings on the internet. The first
minutes to be published were of the June Board meeting. The Board's
decision reflected its stated commitment to greater accountability
and transparency and took into account FOIA requests received
by the BBC. Where information is withheld from the published version,
this is consistent with the exemptions in FOIA.
35. FOIA has raised the profile of information
management issues. Traditionally records management has not been
given the priority it deserves. Now that information management
is underpinned by statutory obligations, it has a renewed focus
and an authoritative voice. Guidance now includes the Information
Management Best Practice Guide for staff which explains what
is required by FOIA and the section 46 Code of Practice. Staff
at the BBC who deal with FOIA requests experience first hand the
practical significance of information management policies and
procedures. They are becoming more aware of the importance of
managing emails appropriately, considering how long information
should be kept, and keeping track of versions and drafts.
COST OF
COMPLIANCE
36. Complying with FOIA at the BBC is resource
intensive. The BBC spent £867,000 preparing for implementation
including delivering staff training, a staff awareness campaign,
and preparing the publication scheme. It is difficult to measure
the annual cost of compliance accurately because staff time across
the BBC is the biggest cost. In 2005 the central cost of FOIA
approx £500,000. Most requests are handled with relatively
little cost. However some requests involve complex issues or a
large number of staff or huge volumes of information and these
are very expensive to handle.
37. The BBC tries to minimise the costs of compliance
in a number of ways. For example, by engaging with requesters
and seeking clarification wherever necessary. We see the statutory
duty to give advice and assistance as a tool for public authorities
as well as duty. Staff education is also important. A base understanding
of principles and approach encourages more efficient handling
of requests. We are continuously improving internal procedures
so that handling of FOIA requests is more efficient.
20 WORKING DAYS
38. In 2004 some public authorities gave evidence
to this Committee the 20 working day deadline for responding to
requests is too onerous. In 2005 93% of FOIA requests were handled
by the BBC within 20 working days. 3% were extended legitimately
under section 10 to consider the public interest test. 4% were
late.
39. Based on our experience so far, we believe
that the 20 working day deadline is demanding but necessary. Amending
the legislation now to extend the deadline would encourage less
efficient, rather than better, consideration of FOIA requests.
However it would be useful to review the deadline after several
years of operation when the legislation is in "steady state"
and in the context of a wider review of resource implications.
40. Staff training, a management endorsed awareness
campaign, and the dedication of staff across the whole BBC, have
all contributed to this good record. Tight central control over
the process is essential. All requests received by the IPC team
are acknowledged within one working day and allocated a unique
reference number and progress of current requests is monitored
on a daily basis. FOIA requests received across the BBC are ideally
forwarded to the IPC team, although there is sometimes delay particularly
when the request is incorporated into business as usual correspondence.
41. Many requests involve consultation with a
wide range of people and approval by senior managers. This consultation
is sometimes for the purpose of considering exemptions, but often
to prepare an accurate, full and helpful response. A significant
number of requests have involved consideration of complex issues
or consultation with third parties. Compliance with the deadline
is therefore often very challenging. Complying with requests "promptly"
is an area in which we are continuously trying to improve our
record. For all staff other than the IPC team, compliance with
FOIA is in addition to usual workload.
FEES
42. We have some experience of applying the Freedom
of Information and Data Protection (Appropriate Limit and Fees)
Regulations 2004. ("the Fees Regulations") Many requesters
have unrealistic expectations of FOIA. We always advise and assist
the requester and where possible narrow the request/s to within
manageable limits as defined in the Fees Regulations. It is unusual
for the BBC to not provide any information at all. In 2005, only
twenty requests (0.02%) were refused in full under section 12(1)
on the grounds that compliance would cost more than £450.
43. The BBC does not charge for photocopying
unless the request is for an exceptional volume of material. For
example, we charged one academic researcher for photocopying 1000
pages of material about arrangements for wartime broadcasting.
44. In our experience the Fees Regulations are
not an effective tool for managing the costs of compliance which
are ultimately, in the case of the BBC, borne by the licence fee
payer. It is difficult to apply the 2.5 day threshold in advance
particularly when one request can involve information held by
several divisions and/or different formats.
45. However, despite this concern, the BBC does
not at present support the introduction of a flat fee for each
FOI request. We believe that it is too early to amend the legislation
in such a fundamental way, without first encouraging the use of
the other tools that are available to public authorities to minimise
compliance costs. It also does not support amending the Fees Regulations
to provide that the time taken to consider disclosure is included
within the appropriate limit definition. This would create the
wrong incentive.
British Broadcasting Corporation
February 2006
| 
