Case 020336. Note: This decision was appealed to the High Court on a point of law. On 11 June 2004, Mr. Justice O'Caoimh gave his judgment, which may be accessedhere.

Request to Radio Telefis Eireann (RTE) for data collected on the amount of broadcast time allocated to each political party in the General Election Campaign of 2002 - whether the collection of such data is part of the functions of RTE falling within the remit of the FOI Act as provided for by the Schedules to S.I. 115 of 2000 - whether the records relate to the deliberative process of RTE - section 20 - whether release of the records could reasonably be expected to have a significant adverse effect on the performance by RTE of any of its functions relating to management - section 21

Case Summary

Facts

In this case the requester sought, from Radio Telefis Éireann (RTÉ), data collected on the amount of broadcast time allocated to each political party during the General Election campaign of 2002. The requester sought a breakdown, on a daily basis, for radio and television by party.

The FOI Act applies to certain specified functions of RTÉ as set out in the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. No 115 of 2000). In those regulations, Schedule 2 sets out the functions which fall within the remit of the Act; Schedule 3 sets out the functions which do not fall within the Act's remit. The regulations further provide that the functions specified in Schedule 2 are deemed not to include any of the matters specified in Schedule 3. In short, the functions covered by the FOI Act are management, administration, finance, commercial, communications and the making of contracts for services. Schedule 3 is concerned with programming functions.

The records at issue comprised a set of data compiled from a "Contributor Tracking" information technology programme as well as a set gathered by researchers employed to monitor all radio and television outputs for the General Election campaign. RTÉ refused the records on the basis that they related to the editorial process of RTÉ, were proper to Schedule 3, and accordingly, that the FOI Act did not apply to them.

Decision

The Commissioner found that the records at issue were created and held by RTÉ in the context of its performing its management function of ensuring impartiality in broadcasting of news and current affairs (Section 3 of the 1976 Broadcasting Act refers). Accordingly, he found that the records were covered by the provisions of the FOI Act. While the data in question concerned represented information on which the process of editorial decision making may have relied, or by which it may have been influenced, the Commissioner was of the view that the data were created for the purpose of ensuring balanced programming in accordance with RTÉ's legal obligations. The Commissioner drew a distinction between the "process of making editorial decisions", which he said would include records of discussions at editorial meetings, and records of decisions taken, and the data or information on which such a process relied. In reaching his conclusion the Commissioner attached some significance to the fact that the General Election Steering Group which used the data in question in its decision making, was Chaired by the Director General of RTÉ.

Having found that the records came within the scope of the FOI Act, the Commissioner gave consideration to whether or not they would be exempt from release under any of its provisions. He did not find that any of the exemptions applied and decided that the records should be released to the requester.

Date of Decision: 05.12.2002

Our Reference: 020336

05.12.2002

Mr. X

Dear Mr. X,

I refer to your application under the Freedom of Information Act 1997 (the FOI Act), for a review of the decision of RTÉ on your request for data collected on the amount of time allocated to each political party during the general election campaign of 2002. You requested a breakdown on a daily basis for radio and television by party. Your original request to RTÉ of 15 May 2002 refers.

Background

I have now completed my review of RTÉ's decision. In carrying out that review I have examined submissions to my Office made by RTÉ on 1 July 2002, 14 October 2002, and 22 October 2002. I have also examined correspondence between yourself and RTÉ on the matter. You made a submission to my Office, dated 23 September 2002, and I have taken account of that submission. I have decided to conclude this review by making a formal decision.

Scope of Review

The FOI Act applies to certain named functions of RTÉ as set out in Statutory Instrument 115/2000 Freedom of Information Act, 1997 (Prescribed Bodies) (No.2 regulations, 2000). Schedule 2 sets out the functions which fall within the remit of the FOI Act; Schedule 3 sets out the functions which do not fall within the Act's remit. The approach taken in the regulations contrasts with the approach in section 46 of the Act which lists specified records to which the Act does not apply. Section 6 of the FOI Act gives every person a right of access to any record held by a public body subject to the provisions of the Act. The question I have to examine is whether the records in question in this case are held by RTÉ in the context of the performance by it of the functions set out in Schedule 2, or in the context of the performance of the functions set out in Schedule 3.

Analysis

Freedom of Information Act, 1997 (Prescribed Bodies)(No.2) Regulations, 2000, S.I. 115/2000

On 1 May 2000, RTÉ became a prescribed body for the purposes of the Freedom of Information Act under the above-named regulations. These regulations, which my Office has provided to you, state that RTÉ stands prescribed for the purposes of paragraph 1(5) of the First Schedule to the Freedom of Information Act, 1997, only as regards the functions of the body which are specified in Schedule 2. That is, the following functions of RTÉ are covered by the FOI Act: Management, Administration, Finance, Commercial, Communications and the making of contracts of, or for, service with any person, company or other body. The regulations further provide that the functions specified in Schedule 2 shall be deemed not to include any of the matters specified in Schedule 3 to the regulations. In other words, if I were to find that the records concerned were held by RTÉ in the context of its functions in Schedule 3, I could not also find that they are held by RTÉ in the context of its functions in Schedule 2. I shall examine the Schedule 3 functions in more detail later; suffice to say for the present that they are concerned with programming.

Two sets of data collected by RTÉ fall within the scope of your request. One set was gathered using the "Contributor Tracking" information technology programme, which depended on inputs by production staff, and was in place from 1 January 2002 to the end of the election campaign (15 May 2002). The second set was gathered by two researchers employed at the beginning of April 2002 to monitor all radio and television outputs for the general election and was in place to the end of the election campaign. The data constitute a record of how much broadcast time each political party received during the general election campaign. While I have not received a copy of every record in the scope of your request, RTÉ did provide me with a sample of the records in question being the figures that were presented to the General Election Steering Group. Access to the data was refused on the basis that they related to the editorial process of RTÉ and were not covered by the FOI Act. In its decision letter to you RTÉ stated that the information gathered was "to assist RTÉ in its editorial processes and to work towards balanced programming across its range of output".

In your submission to my Office you argued that you requested the factual data gathered and not information on the editorial process. You stated that the data was publicly available and could easily be collected by anyone with a tape recorder and a stopwatch. You claimed that the data requested by you was covered by the management function listed in Schedule 2 and that RTÉ collects the data in order to meet its statutory obligation related to balance in broadcasting. You argued that the data collection in this case is a management rather than a journalistic function.

It is necessary at this point to set out the provisions in the Broadcasting Acts 1960 to 1976 that are relevant to this decision. RTÉ was established by section 3(1) of the Broadcasting Authority Act, 1960. Its principal function was to establish and maintain a national television and sound broadcasting service. Under the 1960 Broadcasting Act and subsequent legislation, RTÉ was obliged to ensure that when it broadcast any information, news or feature which related to matters of public controversy, or was the subject of current public debate, the information, news or feature was presented objectively and impartially and without any expression of the Authority's own views (section 18(1) of the Broadcasting Authority Act 1960 refers). Section 3 of the 1976 Broadcasting Act repealed sub-section (1) of section 18 of the 1960 Act and replaced it with the following subsection:

"Impartiality.

3. The Principal Act is hereby amended by the substitution of the following subsections for section 18 (1):
"(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that
( a ) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority's own views,
( b ) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority's own views,
( c ) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.
Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.
(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual."."

While not wishing to express a general definition of what records might be covered by the "Management" and "Administration" functions listed in Schedule 2, I do consider it possible that these headings could refer to records related to matters including compliance with statutory obligations, strategy, policy, planning and development, personnel, recruitment, information technology, accommodation, internal organisation, office procedures and the like. Compliance with the overall statutory obligations of RTÉ is clearly a function of the management of that body. The question of whether the data in question in this review is held by RTÉ or was created by it in the performance of its management function must, therefore, be considered.

In a letter which issued on 9 October 2002, RTÉ was advised that it was the preliminary view of my Office that the data in question in this review related to a management function as the dominant purpose for collecting the data was to ensure compliance with RTÉ's statutory obligation as it affects programming. That letter also advised RTÉ of the view of my Office that the data in question did not come within the ambit of Schedule 3. In its submission to my Office dated 22 October 2002, RTÉ did not refute this view, rather it stated that it compiled the records "to assist ourselves in the task of fulfilling our statutory obligations" and that it monitors referenda and election reporting to ensure that balance is achieved. In fairness to RTÉ, however, their earlier letter of 14 October 2002 had argued strongly that the records were created "to assist us in the editorial function of making programmes".

RTÉ does make the point that the 1976 Broadcasting Act allows it to achieve balance over related programmes, saying that this can take a number of weeks. On this basis RTÉ feels that the "premature release" of the data in question could be misleading and might lead to accusations of bias that are unjustified, due to the fact that balance in programming is achieved over related programmes rather than in each programme. The case being advanced appears to be that the release of raw data, such as that requested by you, before the completion of the process would be misleading. My attention is also drawn to the limited usefulness of the raw data at any stage. I am told that it is merely a stopwatch exercise used exclusively as an indicative source of information about programme balance, the data "does not take into account context, audience size, impact of broadcast etc.".

In its decision to you RTÉ made the point that the function of the Steering Group to review and preview all programming, in order to assess programme balance, is the more important part of the editorial process (rather than an analysis of the data on times allocated to each party as gathered by RTÉ). I accept this point and see that the raw data in question is only one element in a larger process to ensure compliance with RTÉ's statutory obligations. However, as I have stated in previous decisions, the use made of released information, where it is properly obtained under the Freedom of Information Act, is not something I need consider. Section 8(4) of the FOI Act provides that, when deciding whether to grant or refuse a request, a public body must disregard any reason that a requester gives for the request or any belief or opinion that the public body has as to the reasons for the request. The limited nature of the data in this case, or the use to which the data might be put should they be released, are not, therefore, a matter for this review. I have also indicated in previous decisions (see for example Case Number 98078, Mr. Martin Wall and the Department of Health and Children) that I do not accept that the possibility of the public misunderstanding information is, generally speaking, a good cause for refusing access to the records of public bodies. Furthermore, I consider RTÉ to be well placed to explain their records to the public and to address any issues that might arise regarding any information about it in the public domain. What I must decide is whether or not the data come within one or more of the functions listed in Schedule 2 of S.I.115/2000.

Provisions of Schedule 3 of S.I. 115/2000

As mentioned previously, Schedule 2 of S.I. 115/2000 sets out the functions of RTÉ that are covered by the FOI Act. The functions in Schedule 2 cannot include any of the matters specified in Schedule 3 to the regulations. Therefore, as I have already said, the essential question I must address is whether or not the records in question are held or were created by RTÉ in the context of the functions set out in schedule 3.

Paragraph 1 of Schedule 3

This paragraph concerns the gathering and recording in any form of any data or information for programme content or journalistic purposes whether or not a programme is produced or broadcast on the basis of such information. It is clear that this paragraph protects information held or created specifically for the making of a programme - whether or not it is made or broadcast. In RTÉ's Programme Makers' Guidelines, this is described as "programme research". The data in question were not created in the course of research for programme making or with the intention of making a programme and so, in my view, are not covered by this paragraph.

Paragraphs 2 and 3 of Schedule 3

Paragraph 2 provides for the protection of journalistic sources. Information relating to the identification of any potential or actual source of information for the purpose of programme origination is excluded from the FOI Act. The data in question clearly were not created in the context of the functions listed in this paragraph. Paragraph 3 covers the editing and storing of material recorded for the purpose of programme origination. It is clear that the data in question were not recorded for the purpose of programme origination and accordingly are not covered by this paragraph.

Paragraph 4 of Schedule 3

This paragraph excludes from the FOI Act the process of making editorial decisions concerning programme or programme schedule content, to include (without prejudice to the generality of the foregoing) preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions. The Oxford English dictionary defines "process" as "The fact of going on or being carried on, as an action, or a series of actions or events; progress, course".

As I interpret the RTÉ case, it claims that the data at issue were created to aid RTÉ in the process of making editorial decisions concerning programme planning and that in this context the data were an integral part of that process. The objective was to establish whether or not a bias in favour of a particular political party was resulting from on-going programmes and, if so, to adjust planned programmes to ensure impartiality in accordance with RTÉ's statutory obligations. This seems to me to be an arguable case which must be set against the earlier argument that the data were held or created in the context of RTÉ performing one of its management functions. i.e. ensuring impartiality.

The general definition of editorial work is the preparation or setting in order, for publication or broadcasting, of material which is wholly or in part the work of others. The process involves selecting, revising and arranging the material. It is clear that, in the case under review, there was no question of the data being edited in any way. But it is arguable that the editing process also comprehends the putting in or the leaving out of certain material for publication or broadcasting. For example, a film editor may delete certain scenes or shots from the final production. The more one considers the process of editing in practice, the more it becomes apparent that the editing decision invariably relates to the material which it is intended to publish or broadcast. A distinction clearly exists between the editorial decision on the one hand and the reasons for that decision, or the information on which it is based, on the other. For example, an editorial decision to drop a particular programme may be made as a result of public pressure. Data/records relating to that public pressure is clearly not held or created in the context of the editorial process although it provides the basis for the editorial decision.

It is possible, however, to argue in this case that the data which provided the basis for a possible editorial decision were specially commissioned to enable such a decision to be correctly made. The two sets of data collected by RTÉ were specifically created in connection with RTÉ's general election coverage. Can a distinction be drawn between the data in this case and data generally by reference to which RTÉ attempts to comply with its statutory responsibility for impartiality? I do not think so. General election coverage is just one sub-set of overall programming. RTÉ may be more acutely aware of the need for balance during an election or referendum campaign but its obligations apply to all news and current affairs broadcasts. The process of editorial decision making in relation to these broadcasts will, from time to time, be based on a variety of data from a wide range of sources both "in house" and external between which no distinction can be made for the purposes of FOI as access is to records held by, or in the possession of, or under the control of, a public body. It is possible, however to make a distinction between that process and the data on which it may rely.

Because this is the first review I have carried out in this potentially sensitive area, I considered it necessary to examine the rationale behind the exclusion from FOI of RTÉ's programming functions. It is clear that S.I. 115/2000 is designed to protect the integrity of those functions including the process of editorial decision making and the sources which contribute to the making of particular programmes. It seemed to me that it might be a worthwhile exercise to look at other provisions of the FOI Act designed to protect the integrity of decision making processes in public bodies.

While I do not equate the process in RTÉ of making editorial decisions concerning programmes or programme schedule content with government decision making, I considered whether sections 19 and 20 of the FOI Act might offer some useful insights into the matter. Section 19 covers records relating to meetings of the government and exempts from release government memoranda, briefing notes for ministers when attending government meetings and the ministerial decisions of government meetings. But the exemption does not apply to records in so far as they contain factual information on which a published government decision was based. Section 20 covers records containing matter relating to the deliberative process of a public body but it does not exempt from release "factual (including statistical) information and analyses thereof" and, furthermore, requires the release of any records unless to do so would be "contrary to the public interest". It seems relevant that both these exemptions draw a distinction, so to speak, between the decision making process and the process of collecting factual material on which the decision may be based or by which the decision may be influenced.

RTÉ argues that the release of records such as those requested by you would place it in an impossible position and would make its operation "impossible to carry out". RTÉ states that it is under no legal obligation to create the particular records and states that if as a result of so doing "we made it more difficult for ourselves" it would cease to gather the data. In the absence of monitoring by way of such data gathering by RTÉ, it would prove extremely difficult for the management of RTÉ to ensure that it was meeting its statutory obligations under the Broadcasting Acts. In any event, if such data were released administratively, on an on-going, time-series basis, the data would be seen not in isolation as discrete sets of data but rather as part of a continuum. It is clearly essential that the management function of RTÉ operates so as to meet its statutory obligations. It seems to me that the release of data of the kind in question supports that process and ensures that RTÉ's overall statutory responsibilities are met.

Paragraph 5 of Schedule 3

This paragraph excludes the process of post-transmission internal review and analysis of any programme or schedule of programmes broadcast. I accept that the data in question in this review may be used in this process of internal review and analysis but I take the view that the considerations which apply in relation to paragraph 4 apply equally here.

Findings

In the light of the various considerations set out in the foregoing analysis, I have come to the conclusion that the data at issue in this case were created and held by RTÉ in the context of its performing its management function of ensuring impartiality in broadcasting of news and current affairs. While the data concerned represent information on which the process of editorial decision making may have relied, or by which it may have been influenced, the data were created for the purpose of ensuring balanced programming in accordance with RTÉ's legal obligations. I draw a distinction between the "process of making editorial decisions", which would include records of discussion at editorial meetings and records of decisions taken, and the data or information on which such process relies. In reaching my conclusion I have attached some significance to the fact that the General Election Steering Group which used the data in its decision making, was Chaired by the Director General of RTÉ. The data requested by you, therefore, are covered by the provisions of the FOI Act. I find that RTÉ was not justified in refusing you access to the records in this case on the basis that the FOI Act did not apply to them.

Given that the data are within the scope of the FOI Act, I have given some consideration to the question of whether or not their release would be exempt under any of the provisions of the FOI Act. In this regard I have given particular attention to sections 20 and 21 of the Act. Section 20 provides that a head may refuse to grant a request if the records concerned contain matter relating to the deliberative process of the public body concerned. Even if I was to find that records "related to" the process of making editorial decisions were encompassed in the "deliberative process" of RTÉ, and that the records in questions constituted such records, subsection (2)(b) of section 20 specifically excludes "factual (including statistical) information and analysis thereof". Accordingly, I find that section 20 does not apply to the records in question.

Section 21 (1) provides inter alia that a head may refuse to grant a request if access to the records concerned could reasonably be expected to have a significant adverse effect on the performance by the public body of any of its functions relating to management. Section 21 (2) goes on to say that subsection (1) shall not apply in relation to a case in which, in the opinion of the head of the public body, the public interest would, on balance, be better served by granting than by refusing to grant the request. RTÉ's stated, in its letter to me dated 22 October 2002, that the (premature) release of records would put it in an impossible position and that "the kind of scrutiny we would face would make our operation impossible to carry out". RTÉ has also claimed that if it was obliged to make the records requested available, it is "inevitable that some political party or pressure group would use these records to undermine public confidence in RTÉ's impartiality and objectivity in its coverage of elections and referenda". This can be interpreted as a claim that the release of the records in question would have a significant adverse effect on the performance of RTÉ's management functions, particularly as they relate to ensuring compliance with statutory obligations. I have already stated that it seems to me that the gathering of data such as the data in question is essential to ensure that RTÉ is meeting its statutory obligations under the Broadcasting Acts. For section 21(1)(b) to apply it is necessary to identify a significant adverse affect on RTÉ's performance of its functions relating to management. Because of RTÉ's position I consider it highly unlikely that it would be possible for any recipient of data such as the data in question to misrepresent the data to the public. While the release of such data might represent an administrative burden, I do not accept that the release of the data would have a significant adverse effect on RTÉ in the performance of its management functions and find that RTÉ has not identified any such effect. Because I find that section 21(1)(b) does not apply to the records, it is not necessary for me to consider section 21(2) in this case. I consider that the release of the data in question would allow the public to see whether RTÉ's overall statutory responsibilities are being met and would lend a transparency to its performance of its management function in this regard.

Having considered the matter, I am satisfied that the release of the data would not be exempt under any of the exemptions in Part III of the FOI Act. Finally, with regard to the particular format for the presentation of the information requested I would draw your attention to the fact that a public body is not obliged to create a record for the purposes of the FOI Act. Accordingly, if the data does not exist in the format requested, RTÉ is not obliged to create records in order to present it in the requested format.

Decision

Having carried out a review under section 34 (2) of the FOI Act, I hereby annul the decision of RTE to refuse the records in question. I decide that the two sets of data collected by RTE which fall within the scope of your request should be released to you.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Kevin Murphy
Information Commissioner