Reference: 942761
Jerin John Information Rights Adviser [email protected]
23 July 2020
Freedom of Information: Right to know request
Thank you for your request for information in relation to the BBC One programme, BBC Politics Show South East.
Your request was passed to the Information Requests team on 3 July and we have considered it under the Freedom of Information Act 2000 (“the Act”).
Your request
In your correspondence with the Content Policy Team of 3 July, you asked whether there were Ofcom rules or regulations regarding the BBC programme BBC Politics Show South East, such that the company that makes it must be based in the BBC South East region, or directly employs people based in the BBC South East region or spends a certain amount of the budget in the BBC South East region.
The Content Policy Team explained to you that, in relation to rules or regulations regarding regional programming, the BBC has quotas for the amount of regional programming it is required to broadcast. These quotas are set by us and can be found in regulatory condition 2.67 of the Operating Licence for the BBC’s UK Public Services document.
In particular, regulatory condition 2.67.4 requires that, in respect of BBC One and BBC Two, the BBC must ensure that at least 95% of those programmes consist of programmes made in the nation or region in relation to which those programmes are to be of national or regional interest.
In addition, paragraphs 5 and 12 of our regional programme Guidance sets out the criteria for how broadcasters determine whether a programme has been made in the region.
You replied to this advice by asking for the following information:
Could you then clarify whether the programme in question has been included, or not, by the BBC in the bundle of 95% of programmes about the regions that have been made in the region that the BBC presents to Ofcom?
Following from my email of 6 July acknowledging your request, you provided some clarification:
Page 1 of 3
To help Ofcom answer my question, for clarity I am asking about the time period from when the programme was contracted out to the company that currently makes it up to present.
If the programme has been included in the 95% figure it would be good to know whether the BBC indicates which criteria of three have been met.
Our response
The information in scope of your request is information about a business (the BBC), which in this context is exempt under section 44 of the Act. Section 44 exempts disclosure of information if another enactment prohibits it. Ofcom considers that the enactment and specific provision which prohibit the disclosure of the requested information is section 393 of the Communications Act 2003.
Section 393 prevents Ofcom from disclosing information about a particular business, which includes information we have gathered as part of our functions relating to regional programming, unless Ofcom has the consent of that business or Ofcom considers that disclosure would further the exercise of its functions.1 In the circumstances of this case, neither gateway to disclosure is engaged. Therefore, the information requested is exempt under section 44 of the Act.
Section 44 is an absolute exemption and does not require a public interest test.
Given that this is information about the BBC, you may wish to engage them with your queries surrounding this matter.
I hope this information is helpful. If you have any further queries, then please send them to [email protected] quoting the reference number above in any future communications.
Yours sincerely,
Jerin John
1 Section 393 of the Communications Act 2003 prohibits Ofcom from disclosing information “with respect to a particular business which has been obtained in exercise of a power”. The term “in exercise of a power” in the context of section 393 was considered in the Commissioner’s decision FS50187452 at paragraph 14: “Ofcom explained that in its view the term ‘in exercise of a power’ is wide and encompasses receiving, considering and responding to complaints in relation to potential breaches of the Broadcasting Code. The Commissioner agrees that section 393 is not limited to information Ofcom has obtained using its powers but also includes instances when Ofcom has been provided with information in light of its powers…”.
Page 2 of 3
If you are unhappy with the response or level of service you have received in relation to your request from Ofcom, you may ask for an internal review. If you ask us for an internal review of our decision, it will be treated as a formal complaint and will be subject to an independent review within Ofcom. We will acknowledge the complaint and inform you of the date by which you might expect to be told the outcome. The following outcomes are possible: • the original decision is upheld; or • the original decision is reversed or modified.
Timing If you wish to exercise your right to an internal review you should contact us within two months of the date of this letter. There is no statutory deadline for undertaking internal reviews and it will depend upon the complexity of the case. However, we aim to conclude all such reviews within 20 working days, and up to 40 working days in exceptional cases. We will keep you informed of the progress of any such review. If you wish to request an internal review, you should contact:
Corporation Secretary Ofcom Riverside House 2a Southwark Bridge Road London SE1 9HA
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 Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF
Page 3 of 3