My blog on 7 June 2009 dealt with the BBC's duplicitous attitude to diversity, and their request to be excluded from proposed duties in the new equality legislation. I was sufficiently concerned to write to the DCMS at the beginning of May. Following receipt of the DCMS response dated 7 August 2009 (shown below) I wrote early this week to ask solely for release of the originating requests for opt-outs, and have not yet heard back.
Response from DCMS on 7 August 2009
Thank you for your request for information regarding the Equality Bill, which was received on 1 May 2009.
Your request read: “I understand that the DCMS has received requests from the BBC and Channel 4 to be exempted from certain duties in the new Equality Bill. Please could you send me copies of correspondence in connection with these requests?”
Please note that your request has been dealt with under the Freedom of Information Act 2000. The Act deals with requests for information and a request for copies of correspondence would not usually qualify as a request for information. However, we have decided to treat your request as a request for information contained in correspondence between the BBC, Channel 4 and the Department relating to requests from those broadcasters to be exempted from certain duties in the Equality Bill and have dealt with your request accordingly. Under the Act, you have the right to:
We contacted you on 2 June 2009 and explained that the Department holds certain information that falls within the scope of your request. It was considered at that stage, on a preliminary view, that all the information we hold may have been exempt from disclosure under section 35(formulation of government policy) and section 42(legal/professional privilege) of the Act. We explained to you that when these exemptions apply, we need to carry out a public interest test to consider whether the balance of the public interest lies in favour of maintaining the exemption or in favour of releasing the information.
On further deliberation we have now concluded that section 42 of the Act does not apply and we confirm our view that section 35(1)(a) and of the Act is engaged in relation to the information we hold that is relevant to your request. In addition, we have concluded that s.41 of the Act also applies to some of that information.
Section 35(1) (a) (formulation of government policy) applies to the information that the department holds in connection with the Equality Bill that falls within the parameters of your request.
The factors we considered in carrying out the public interest test are as follows:-
Section 35
Public Interest Considerations in favour of disclosure
1. Greater transparency makes the Government more accountable to the electorate and increases trust.
2. The public interest in being able to assess the quality of advice being given to Ministers and subsequent decision making
3. The topic in question is likely to be of considerable pubic interest.
Public Interest Considerations in favour of maintaining the exemptions
1. Good government depends on good decision making and government should have time and space to explore options and to “hammer out” policy safe from the threat of “lurid headlines”. The issue of the broadcasters and how the Equality Bill will affect them has already attracted media interest and disclosure of the options and issues under consideration may well result in the type of media interest which is likely to impair good decision making.
2. In relation to the Equality Bill, the government is working with a number of third parties/stakeholders in order to ensure that the development of policy is based on the best possible advice from the industry involved. Advice should be full and frank and should be broad based and there may be a deterrent effect on external experts or stakeholders who might be reluctant to provide advice or express their views because of the risk of disclosure whilst such advice and views are being discussed and developed. The views being expressed relate to ongoing policy development and therefore it would be damaging to disclose the discussions before decisions are taken and policy is formulated. In respect of this process, organisations making their representations need to be able to give their opinions in a free and frank manner. The premature release of the information requested may mean, in the future, that external experts or stakeholders may not feel that they can be as open. There is a risk therefore, that future decision making and policy formulation would be damaged or inhibited.
3. Ministers and officials need to be able to conduct rigorous and candid risk assessments of their policies and programmes including considerations of the pros and cons without there being premature disclosure which might affect full and objective considerations of all options. Any publication could hinder the frank discussions and rigorous considerations of expert advice required.
In the light of the above, the Department’s view is that the public interest in favour of maintaining the exemption outweighs the public interest in disclosure.
Accordingly, we consider that the information you have requested should not be disclosed.
Section 41
In addition we have also concluded that Section 41 (Information provided in confidence) of the Act applies to some of the information that the Department holds that is relevant to your request.
This exemption has been applied because the information in question was supplied on a confidential basis. The Department owes a duty of confidence in relation to this information. The exemption in section 41 is an absolute exemption and, accordingly, because it applies to some of the information you have requested, it requires us to withhold that information from you.
This exemption under s.41 applies to some of the information in addition to the exemption under s.35 of the Act as set out above.
Further Advice
If you are dissatisfied with any aspect of our response to your request for information and/or wish to appeal against information being withheld from you, please send full details within two calendar months of the date of this letter to:
FOI Central Team,
Public Engagement and Recognition Unit
Department for Culture Media and Sport,
2-4 Cockspur Street, London,
SW1Y 5DH
You have the right to ask the Information Commissioner (ICO) to investigate any aspect of your complaint. Please note that the ICO is likely to expect internal complaints procedures to have been exhausted before beginning his investigation.
Please accept my sincere apologies for the delay in responding to your request and do not hesitate to contact me if I can be of further assistance.
Kind regards
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