Guidance

Memorandum of Understanding between the Department for Digital, Culture, Media & Sport ('DCMS'), the Department for Business, Energy & Industrial Strategy ('BEIS') and the Office of Communications ('OFCOM')

Published 24 September 2020

Provision of information by Ofcom prior to publication

Section 1 - Purpose of this Memorandum of Understanding

1.1 This Memorandum of Understanding sets out how information Ofcom proposes to publish will be provided to DCMS and BEIS by Ofcom before publication, in accordance with the duty under section 24A of the Communications Act 2003 (as inserted by the Digital Economy Act 2017). See Annex A

Section 2 - The duty to provide information

2.1 Ofcom must provide the Secretary of State, at least 24 hours before publication, with any information they propose to publish.

2.2 What do we mean by information? Information is a broad term meaning information recorded in any form. Section 405(1) of the 2003 Act further defines information as including accounts, estimates and any document. This includes reports, research, policy guidance, annual, periodic or ad hoc reviews, consultations and responses.

2.2.1 Social Media and press releases Posts to social media (e.g. Twitter, Facebook) and press releases are not subject to the duty to provide information under section 24A. Social media posts and press releases made by Ofcom generally include information that has already been provided in another format. For example, a tweet that signposts to or includes information from a report or an announcement published on Ofcom’s website which has already been provided to the Secretary of State. As such, it would not be necessary to share with government in advance. Moreover, social media posts and press releases made by Ofcom are often published soon after they have been finalised, and often respond quickly to live events, and therefore it would be impracticable to provide the information in advance.

Nonetheless, this does not affect any existing arrangements for sharing press releases and Ofcom, DCMS and BEIS will continue to oversee a reciprocal no surprises agreement ensuring that where reasonably possible each organisation is notified of relevant external communications in a timely manner.

2.3 What is publication? Publication means to make information available to the public through any means. For example, publication includes the distribution of a hard copy of a document, making an electronic copy of a document or other information available on a website.

2.4 Exceptional circumstances. If exceptional circumstances make it impracticable to provide the information 24 hours before publication it must instead be provided as long before publication as is practicable.

Section 3 - Exceptions to the duty to provide information

3.1 Case-by-case agreements. The duty to provide information is subject to any agreement between Ofcom and the relevant Department in relation to individual cases (i.e. specific information proposed to be published). For example, they can agree that a specific document is not subject to the duty or that a document is subject to a modified duty e.g. to be provided less than 24 hours before publication. The process for coming to such an agreement is set out in Section 4.

3.2 Exceptions. The Office of Communication (Provision of Information) Regulations 2020 specifies descriptions of information to which the duty to provide does not apply, which are as follows:

(i) Broadcasting content standards enforcement - Information relating to the exercise of the functions of Ofcom concerning:

• Programme and fairness standards for television and radio;

• The unjust and unfair treatment or unwarranted infringement of privacy in connection with programmes;

• The broadcasting of local items during election period;

• Party political broadcasts.

For example, this includes any revisions to the Ofcom Broadcasting Code or enforcement decisions made by Ofcom about broadcasters found to be in breach of the Broadcasting Code.

(ii) Broadcasting licensing enforcement information - Information relating to the enforcement of licences to provide television and radio services.

(iii) Corporate functions - Information relating to the constitutional and funding arrangements of Ofcom; and the management of Ofcom. For example, this includes administrative information in relation to salary scales, expenses and financial penalties.

3.3 Partial exemption. Information of significant market sensitivity is subject to a modified duty. Ofcom must provide such information either 24 hours before publication or immediately after 4.30pm of the working day before publication, whichever is the later. Information falls within this exception if its disclosure before publication would prejudice the commercial interests of any person.

Section 4 - Processes

4.1 - Provision of information

4.1.1 Ofcom must provide copies of information it proposes to publish to the relevant dedicated mailbox, at least 24 hours before the intended time of publication unless:]

(i) the information is information of significant market sensitivity and therefore falls to be disclosed immediately after 4.30pm of the working day before publication of a type; or

(ii) Ofcom and the relevant department has agreed alternative arrangements in relation to a particular piece of information.

4.1.2 DCMS, BEIS and Ofcom shall liaise routinely to discuss upcoming information scheduled to be published and any specific alternative arrangements which might need to be agreed in advance.

4.2 - Case-by-case agreements

4.2.1 Where Ofcom are seeking to make an agreement pursuant to section 24A(3) of the 2003 Act, they shall:

• make the request to the relevant department at least one week before the proposed publication date;

• set out what modifications they want to the duty to disclose (including any arrangements about the provision of the information);

• provide an explanation for the modification and any arrangements.

4.2.2 The relevant department shall respond within two working days to the request; and both parties shall endeavour to reach an agreement as soon as possible thereafter.

4.3 - Post disclosure amendments

4.3.1 Where Ofcom has provided information to the relevant department under section 24A and that information has changed prior to or at publication, Ofcom shall notify the relevant department of any substantive changes of the information as soon as is practical.

4.4 - Delay to publication

4.4.1 Where Ofcom has provided information to the relevant department under section 24A and has delayed publication, Ofcom shall notify the relevant department of the delay as soon as possible. DCMS and BEIS shall ensure that Named Officials who have received information are aware of the delay and the information cannot be disclosed until publication.

4.5 - Maintained Named Official List

4.5.1 DCMS and BEIS shall limit access to information provided to the relevant Secretary of State to the following:

• the relevant Secretary of State and departmental Ministers (and their private offices and special advisers);

• the director and deputy director responsible for the relevant policy area;

• the official(s) responsible for the relevant policy area;

• the departmental legal adviser responsible for the relevant policy area;

• press office.

4.5.2 DCMS and BEIS will maintain a Named Official List respectively, categorised by policy area, of who will have authorisation to access information shared by Ofcom in advance of publication, according to Ofcom’s classification. It is the responsibility of DCMS and BEIS to maintain their Named Official Lists and to update them as and when personnel changes, and to send a copy to Ofcom following any revisions.

4.5.3 Access to information provided by Ofcom shall be limited to the minimum number of persons deemed necessary to ensure that the Government is better informed of key research, developments and decisions, and through this aid the Government’s development of policy.

4.6 - Dedicated mailboxes & Designated Points of Contact

4.6.1. Information provided by Ofcom under section 24A shall be sent to a dedicated mailbox within DCMS ofcominformation@dcms.gov.uk and/or BEIS ofcominformation@beis.gov.uk, depending on policy relevance.

4.6.2 Only Designated Points of Contact within DCMS and BEIS shall be authorised to have access to the dedicated mailboxes and will oversee the appropriate distribution of information provided by Ofcom in advance of publication to those individuals on the maintained Named Official List within DCMS and/or BEIS only, depending on policy relevance.

4.6.3 It shall also be the responsibility of individuals on the Named Official Lists within DCMS and BEIS to ensure information shared with them by Ofcom in advance of publication is handled according to the statutory limitations set out in section 24A (6), (7) and (8) of the Communications Act 2003, which stipulate that information shared by Ofcom shall not be disclosed except with another Minister of the Crown, or officials on a named list acting on their behalf; nor can any Minister of the Crown, or officials on a named list acting on their behalf, make representations to Ofcom on the information shared in advance of publication.

4.7 - Duty not to disclose

4.7.1 Information provided by Ofcom under section 24A must not be disclosed by the relevant department to any person during the protected period except to another Minister of the Crown or officials acting on their behalf. The protected period ends when the information is published by Ofcom or Ofcom consents to the disclosure of the information.

4.7.2 Ministers and officials acting on their behalf must not make any representations to Ofcom during the protected period that specify or describe changes that the department considers should be made to information that has been provided under section 24A when it is published.

4.7.3 All individuals with access to information provided under section 24A are responsible for ensuring that these statutory duties are complied with.

4.8 - Breaches

4.8.1 Failure to comply with statutory duties is a serious matter and DCMS, BEIS and Ofcom are responsible for ensuring compliance within the duties imposed on them by section 24A. DCMS, BEIS and Ofcom are also responsible for ensuring that the provisions of this Memorandum are adhered to.

4.8.2 In the event of a failure to comply with section 24A, in particular, the disclosure of information received from Ofcom during the protected period, DCMS and BEIS will take action as required by the Security Breach Procedure in the DCMS and BEIS Security Handbooks. This will involve the security breach being reported, investigated and action being taken in relation to any individual responsible for the breach.

Depending on the seriousness of the security breach, action could include removing access, disciplinary action, or, if appropriate, criminal proceedings.

Section 5 - Personal Data (GDPR)

5.1 DCMS, BEIS and Ofcom acknowledge that their roles in relation to the matters covered by this MoU may involve processing personal data. They consider that they would each be doing so on their own accounts and for the purposes of their own regulatory obligations, as a data controller, rather than as a processor of that data for each other. They will each be responsible for complying with their own obligations under relevant data protection legislation.

Section 6 - General/Disclaimer

6.1 Nothing in this Memorandum is intended to create legally binding relations between the parties.

Section 7 - Review

7.1 This Memorandum will be reviewed 6 months after signature, and from time to time as may be requested by DCMS, BEIS or Ofcom.

Signed for and on behalf of DCMS

Name: Rt Hon Oliver Dowden CBE MP

Position: Secretary of State for Digital, Culture, Media and Sport

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Signed for and on behalf of BEIS

Name: Paul Scully MP

Position:

Minister for Small Business, Consumers and Labour Markets

Minister for London

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Signed for and on behalf of Ofcom:

Name: Dame Melanie Dawes

Position: Ofcom Chief Executive

Annex A

24AProvision of information before publication

(1)OFCOM must provide the Secretary of State, at least 24 hours before publication, with any information that they propose to publish.

(2)If exceptional circumstances make it impracticable to provide the information to the Secretary of State 24 hours before publication it must instead be provided to the Secretary of State as long before publication as is practicable.

(3)Subsections (1) and (2) have effect in any particular case subject to any agreement made between the Secretary of State and OFCOM in that case.

(4)The Secretary of State may by regulations specify descriptions of information in relation to which the duty under subsection (1) does not apply.

(5)Before making regulations under subsection (4), the Secretary of State must consult OFCOM.

(6)Information provided to the Secretary of State under this section may not be disclosed by the Secretary of State during the protected period, except to another Minister of the Crown.

(7)A Minister of the Crown to whom the information is disclosed under subsection (6) may not disclose the information during the protected period to any other person.

(8)A Minister of the Crown may not make any representations to OFCOM during the protected period that specify or describe changes that the Minister considers should be made to information that has been provided under this section when it is published.

(9)In this section

“the protected period”, in relation to information provided to the Secretary of State under this section, means the period beginning with the provision of the information and ending when either of the following occurs—

(a) OFCOM publish the information;

(b) OFCOM inform the Secretary of State that they consent to the disclosure of the information;

“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975.