Thank you for your further email received by us on 3 July 2017 asking for information about advertisements on the London Underground rejected by the TFL advertising steering group following the "body shaming" ban made by the Mayor of London.
Your request has been considered in accordance with the requirements of the Freedom of Information (FOI) Act and our information access policy.
Firstly, please be advised that the Advertising Steering Group has no role in the copy approvals process. It gives guidance on our implementation of our Advertising Policy (published at: https://tfl.gov.uk/info-for/business-and-commercial/commercial-media) and has looked at advertising on our network since its first meeting in February 2017.
We are not obliged to provide copies of rejected images because they are subject to a statutory exemption to the right of access to information under section 41 of the FOI Act (information provided in confidence).
In this instance the exemption has been applied as disclosure of the information you have requested would breach our agreement with our media partners including Schedule 15 of our Advertising Partnership Agreement (APA). The information is not in the public domain and there was no suggestion in the APA that the information would be made public. Rejected advertisements and previous versions of amended advertisements are not images owned by TfL. Copy referrals are deemed to be Reserved Information under Schedule 15 of our APA with our media partners. Therefore we consider that disclosure would constitute an actionable breach of confidence.
Since section 41 confers an absolute exemption, it is not necessary to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Even if section 41 did not confer absolute exemption, there would be no special public interest in disclosure of this information that would justify a breach of confidence in this case.
In accordance with the FOI Act we are also not obliged to supply copies of rejected images, or identify the advertiser concerned, as this information is subject to a statutory exemption to the right of access to information under section 43(2).
In this instance the exemption has been applied as disclosure of the information you have requested would be likely to harm our commercial interests.
The withheld information contains images that have been rejected for use in advertisements in line with our Advertising Policy. Advertisers will be reticent to advertise with us if they know rejected images or advertisements could be published. Advertisers may be reluctant to place adverts that are not 100% guaranteed to be accepted by TfL and this could prejudice our commercial interests by causing a loss of confidence in TfL leading to a potential loss of revenue stream. Likewise, it may put off advertisers submitting any material to us earlier in the process and us supporting them to produce more appropriate advertisements. This neither suits our commercial interests or the production of appropriate advertising in line with the Advertising Policy.
Whilst we recognise that there will be some interest in the rejected images, we consider that even if the disclosure did not lead to action for breach of confidence, it would damage our commercial interests and our ability to engage with advertising companies in the future. We do not consider that there are any other strong public interest factors in favour of disclosure.
The use of s43(2) exemption is subject to an assessment of the public interest in relation to the disclosure of the information concerned. Whilst we recognise the need for openness and transparency by public authorities, in this instance the release of the requested information would have a detrimental effect on our ability to negotiate, therefore adversely affecting our potential to secure value for public money. This detriment outweighs the general public interest in disclosure of the requested information.
As you are aware we have provided you with the link to our published response to another request which sets out the same reasons for withholding he information as above. You can access this here: https://tfl.gov.uk/corporate/transparency/freedom-of-information/foi-request-detail?referenceId=FOI-2255-1617
If this is not the information you are looking for, or if you are unable to access it for any reason, please do not hesitate to contact me.
Please see the attached information sheet for details of your right to appeal as well as information on copyright and what to do if you would like to re-use any of the information we have disclosed.
Yours sincerely
Sara Thomas | FOI Case Officer
General Counsel | Transport for London
Windsor House, 42-50 Victoria Street, London SW1H 0TL
