Ofcom Policy Failure Revealed

Legal action by the broadcasting union, BECTU, against Ofcom has revealed that in 2005 the broadcasting regulator adopted a policy of taking no enforcement action against broadcasters in breach of their licence conditions on diversity.
The decision of the Information Tribunal, which heard BECTU's Freedom of Information Act appeal against the Information Commissioner and Ofcom, took the unusual step of adding an "observation" to the end of its decision, which has now been promulgated, criticising the regulator for its entire handling of the union's request over the last two years.
The union had made a request under the FOI Act in 2007 for the regulator to disclose the ethnic monitoring data that it collected from all qualifying licence holders for the year 2005. Ofcom refused, claiming the FOI Act barred it from doing so and disclosure of the data was not necessary.
BECTU appealed to the Information Commissioner which last year rejected the union's argument on grounds with which the union disagreed, leaving BECTU to go to the Information Tribunal.
Their judgement agreed with BECTU's argument – eventually admitted in court by Ofcom – that the regulator does have the right to disclose this information. But the tribunal has allowed Ofcom to keep this data secret because the regulator successfully argued that its decision to publish only a summary of the data, along with other steps taken, satisfied its duty to take all steps as it considered appropriate to promote equal opportunities.
Ofcom told the court that in 2005 they had decided that the measures they had for enforcing companies’ compliance with their obligatory licence conditions on diversity – fining them or revoking their licence – were "draconian" and "resource intensive given the number of cases".
They concluded that disclosing the companies' ethnic monitoring statistics might "discourage broadcasters from providing such information in the future". Provision of this information is an obligatory condition of broadcasting licences, not a voluntary option.
Although the tribunal found that Ofcom's decision not to release the raw data was not irrational, it criticised Ofcom's handling of the matter stating: "We would observe that Ofcom's handling of this case has possibly led to this appeal being pursued. Ofcom handled the request, the internal review and the complaint before the IC in such a way that it was not clear why it had taken the steps it did in relation to the employment data obtained from broadcasters. If it had been clearer from the start it may have avoided this litigation."
BECTU General Secretary, Gerry Morrissey, commented: "Ofcom’s shocking admission that its policy was not to enforce contract compliance on diversity is a staggering indictment of their attitude to equality and makes a mockery of licence regulation."
He concluded: "Ofcom is obliged by the Communications Act to have regard, in carrying out its duties, to the different interests of the different ethnic communities within the UK. We fail to see how Ofcom’s actions can possibly be in their interests."
BECTU is now demanding intervention from the Equalities and Human Rights Commission and the Government Equalities Office to compel the regulator to change its policy.
(BMcN/GK)