Case 010102. Request for details of the salaries paid to RTE's 25 highest paid presenters for the years 1998 to 2000 - application of sections 21(1)(b), 21(1)(c), 26(1), 27(1)(b), 27(1)(c), 28(1), 31(1)(c).

Case Summary

Facts

The requester applied to RTE for details of the salaries paid to RTE's presenters. RTE decided to refuse the request and the requester applied for a review of RTE's decision. During the course of the review, the requester agreed to narrow the scope of his request to details of the 25 highest paid presenters for each of the three years in question.

Decision

RTE argued that section 21(1)(b) applied on the ground that release of the information sought could cause internal unrest between presenters with a consequent adverse effect on RTE's management functions. The Commissioner did not accept this argument. She found that the question of presenters comparing salaries could arise at any stage given that they are generally free to disclose their salary details at any time either to each other or to the world at large. She considered that RTE should be capable of adequately explaining its basis for determining the level of remuneration it deems appropriate for any individual in the course of contract negotiations. She found that section 21(1)(b) did not apply. The Commissioner also found that the release of the information sought would not disclose positions taken or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiation carried on or being, or to be, carried on by RTE and that section 21(1)(c) did not, therefore, apply.

The Commissioner considered whether section 26(1)(b) applied on the ground that the release of the information sought would constitute a breach of a duty of confidence provided for by the provision of an agreement or otherwise by law. She noted that section 26(2) provides that section 26(1) cannot apply unless disclosure of the information sought would involve a breach of a duty of confidence owed to someone other than RTE, its staff or a person providing a service for the public body under a contract for services. As RTE had not shown that disclosure would involve a breach of a duty of confidence owed to someone other than RTE or the presenters providing a service to RTE, the Commissioner found that section 26(1)(b) did not apply.

On the question of the applicability of sections 27(1)(b) and 27(1)(c), RTE argued that the release of the salary details of the presenters could prejudice their abilities to negotiate contracts from other broadcasters and organisations and would also allow RTE's competitors an unfair advantage in negotiations or approaches to its presenters. The Commissioner considered that the disclosure of historic salary details, which were now three or more years old, would not serve to influence negotiating positions to the extent that the conduct or outcome of the future negotiations of presenters would be prejudiced, nor would disclosure be likely to harm RTE in the manner claimed given the ability of presenters to disclose their salary details to RTE's competitors.

RTE also argued that the information sought was exempt pursuant to the provisions of section 28(1) on the ground that it was personal information relating to the presenters in question. On this point, the Commissioner noted that section 2 of the FOI Act provides for the exclusion of certain information from the definition of personal information including "in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service..". The Commissioner found that the salaries of presenters who are or were providing a service for RTE under a contract for services clearly comes within this exclusion and that the information at issue did not constitute personal information for the purposes of the FOI Act. She found, therefore, that section 28(1) did not apply.

Finally, the Commissioner considered RTE's argument that section 31(1)(c) applied on the ground that disclosure of the information sought could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. RTE argued that if details of individual salaries were released, its competitors may consider approaching its presenters by offering salaries above that offered by RTE in order to encourage them to work with them. The Commissioner found that the key flaw with this argument was that it ignored the fact that a presenter or his/her agent is already generally free to disclose his/her earnings to a competitor of RTE. She found that section 31(1)(c) did not apply.

Date of Decision: 06.01.2004

Our Reference: 010102

06.01.2004

Mr X

Dear Mr X

I refer to your application under the Freedom of Information ("FOI") Act 1997 for a review of the decision of RTE; to refuse your request for details of "all wages and salary paid to Gay Byrne, Gerry Ryan and all other presenters employed by RTE; in the last three years" and details of "all pension and severance packages in relation to same people".

Background

I have now completed my review of RTE's decision. In doing so, I have had regard to

• your correspondence with RTE
• your telephone conversation of 24 September 2003 with Mr Rafferty of my Office,
• the submissions made by the parties consulted by my Office during the course of the review and
• correspondence between RTE and my Office.

I have also had regard to the provisions of the FOI Act generally. The review has been conducted in accordance with the provisions of the FOI Act as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.

During the course of the review, RTE advised my Office that it had provided you with an explanation as to pension arrangements for presenters who are on freelance contracts and that you had agreed to settle that part of your request and also to narrow the scope of your request to details of the salaries paid to the 25 highest paid presenters. I note that you confirmed, during your telephone conversation of 24 September 2003 with Mr Rafferty of my Office, that you were willing to narrow the scope of your request to details of the salaries of the 25 highest paid presenters for the years 1998 to 2000. In its decision letter of 15 February 2001, RTE advised that it draws a distinction between employees and contract staff who are on graded pay scales and those who are on personal contracts as presenters. It advised that there are, in addition, a number of key management staff recruited on a personal contract basis whose salaries do not conform to RTE pay scales. While access was granted to records containing the salary scales and incremental ranges of a sample of its production and management staff and employees, RTE decided to refuse access to the salaries of those individuals recruited on a personal contract basis.

During the course of the review, RTE provided my Office with the names of 35 presenters whose salary details would fall to be released were your request to be granted. Mr Rafferty notified the presenters in question of his preliminary views in respect of RTE's decision to refuse access to the information sought and he invited them to make submissions on the matter. Five presenters made written submissions objecting to the release of their salary details while three others expressed their views as to why the information should not be released during telephone conversations with Mr Rafferty. Two presenters advised Mr Rafferty of their intention to make written submissions objecting to the release of their salary details but have not done so. I have addressed the various arguments presented by those who made submissions, either in writing or by telephone, in support of withholding the information at issue in my consideration of the applicability of the various exemptions in the section of this decision letter below entitled "Findings".

Scope of Review

My review is concerned solely with the question of whether RTE was justified in deciding to refuse access to the details of the salaries paid to its 25 highest paid presenters for the years 1998 to 2000.

Findings

RTE refused access to the information sought pursuant to the provisions of sections 21(1)(b), 21(1)(c), 26(1), 27(1)(b), 27(1)(c), 28 and 31(1)(c) of the FOI Act. I have set out below my findings as to the applicability of each exemption cited having regard to the provisions of 34(12)(b) of the FOI Act which places the onus on RTE of showing, to my satisfaction, that its decision to refuse access was justified. Before doing so, however, I would like to make the following observations. Firstly, I understand that RTE has recently given a commitment to an Oireachtas Sub-Committee to publish details of the salaries of its ten highest paid presenters in the very near future. In my view, this commitment has a bearing on the arguments presented by RTE as to how disclosure of the information at issue in this case might give rise to particular harms either to RTE or to its presenters. I find it difficult to reconcile this commitment with RTE's concerns as to the harms which might arise from the release of the information sought. Secondly, this review is concerned only with the question of whether the release of what may be regarded as historic information relating to presenter salaries should be released and I am not required to consider the question of whether RTE would be justified in deciding to refuse access to current salary details. However, RTE's commitment to release such details in the near future would, it would appear, be relevant to the consideration of such a request.

Section 21(1)(b)

Section 21(1)(b) of the FOI Act provides for the refusal of a request where the public body considers that access could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff). I adopt my predecessor's approach to interpreting the words "could...reasonably be expected to...." in the context of section 21 of the FOI Act. This approach is set out in The Sunday Times Newspaper & Others and the Department of Education and Science, Case Number 98104, 3 OIC Dec. 84, 121 (1999): "[I]n arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur."

RTE's argument is that the release of individual presenter salaries could cause unrest internally in RTE particularly where one presenter is of the opinion that his/her work is similar or identical to that of better paid fellow presenters. It argues that this could limit RTE's capacity to make evaluations of performance and contribution to broadcasting and in the process determine individual remuneration based on these considerations. I do not accept that the release of the salary details sought would so affect RTE. It may be that the disclosure of presenters' salaries could give rise to one or more presenters making comparisons and drawing inferences as to RTE's perception of their value to the organisation. It may also be that comparisons of salaries may result in presenters seeking higher salaries than they might have when contracts require re-negotiation. However, it seems to me that RTE should be capable of adequately explaining its basis for determining the level of remuneration it deems appropriate for any individual in the course of such negotiations. Indeed, such an issue could arise at any stage given that presenters are generally free to disclose their salary details at any time either to each other or to the world at large. On this point, while the issue of confidentiality clauses in presenters' contracts is discussed in more detail below, RTE has confirmed that all such clauses have been removed from all current contracts. There is certainly no ground, in my view, for arguing that RTE would not be in a position to determine the level of remuneration it considers appropriate having regard to its evaluation of the presenter's performance and contribution if the salary details at issue were released. I am not satisfied that RTE has shown how the release of the salaries in question could reasonably be expected to have a significant, adverse effect on its performance of its management functions. In any event, given RTE's commitment to release the salary details of the 10 highest paid presenters in the near future, it is not clear to me that RTE reasonably expect that the harms set out in section 21(1)(b) are likely to occur. In the circumstances, and having regard to the provisions of section 34(12)(b) of the FOI Act, I find that RTE is not justified in deciding to refuse access under section 21(1)(b).

Section 21(1)(c)

Section 21(1)(c) of the FOI Act provides for the refusal of a request where the public body considers that access could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body. This section is designed to protect negotiating positions taken or plans used for the purpose of any negotiation carried on, or to be carried on by or on behalf of the Government or a public body from being disclosed directly or indirectly to other parties in negotiations. RTE's argument is that any disclosure of remuneration, even past remuneration, could prejudice the outcome of discussions between RTE and its presenters. This is an argument that RTE's negotiating position would be prejudiced if the salary details sought were released. This would appear to be a claim for exemption pursuant to the provisions of section 27(1)(c) and not 21(1)(c). I am satisfied that the release of the salary details sought would not disclose positions taken or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiation carried on or being, or to be, carried on by RTE. I find, therefore, that section 21(1)(c) does not apply.

Section 26(1)

RTE argues that the information sought is exempt pursuant to the provisions of section 26(1) of the FOI Act because disclosure would constitute a breach of a duty of confidence provided for by the provision of an agreement or otherwise by law. This is clearly a claim for exemption pursuant to the provisions of section 26(1)(b) of the Act. It appears that RTE's argument is that the contracts negotiated with the presenters impose an obligation on RTE to treat as confidential the terms and conditions of those contracts. RTE has provided my Office with copies of a number of contracts it entered into with various presenters. In two cases, the contracts contain a clause which imposes an obligation of confidence on RTE in respect of the terms of the agreements, while in a further two cases the contracts contain a general clause requiring that the terms of the contracts be kept confidential by the parties to the contracts. The remaining contracts provided by RTE contain no clauses imposing an obligation of confidence on either party in respect of the terms of those contracts.

Section 26(2) of the FOI Act provides that section 26(1) does not apply to a record which is prepared by a member of the staff of a public body, or a person who is providing a service for a public body under a contract for services, in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to someone other than a public body, its staff or a person providing a service for the public body under a contract for services. It is clear that the information sought in this case is contained in records which would have been created by RTE to arrange for payment of remuneration, e.g. payroll records etc. Section 26(1) cannot be used to protect the information contained in such records unless its disclosure would involve a breach of a duty of confidence owed to someone other than RTE, its staff or a person providing a service for the public body under a contract for services. RTE have not shown that the disclosure of the information sought in this case would involve a breach of a duty of confidence owed to someone other than RTE or the persons providing a service to RTE. In the circumstances, I find that section 26(1) does not apply.

One of the presenters notified of the review argued, in a telephone conversation with Mr Rafferty, that section 26(2) cannot be applied retrospectively. His argument is that while he entered into a contractual agreement with RTE after the commencement of the FOI Act, i.e. 21 April, 1998, the contract was signed well before the FOI Act applied to RTE. RTE became a prescribed body for the purposes of the Freedom of Information Act under the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000 (S.I. 115/2000) on 1 May 2000. The Regulations provided that the Act applies to certain specified functions of RTE, viz. management, administration, finance, commercial, communications and making of contracts of or for services with any person, company or other body. In simple terms, RTE became a public body for the purposes of the FOI Act as and from 1 May 2000. Section 6(4) of the Act provides for a right of access to all records held by public bodies which were created after the date of commencement of the Act, i.e. 21 April 1998. This means that the Act provides for a right of access to all records held by RTE in respect of the functions specified in the Regulations which were created after 21 April, 1998, including the records held by RTE which contain the information sought in this case. It is clear, therefore, that the provisions of section 26(2) must be considered in determining the question of whether access should be granted to the information sought. The effect of applying the provisions of section 26(2) in circumstances such as those outlined by the presenter in question is not a relevant consideration in determining whether section 26(2) applies.

In summary therefore, I find, having regard to the provisions of section 26(2), that section 26(1) does not apply in this case. In so finding, I must advise that section 45(5)(a) of the FOI Act provides that for the purposes of the law relating to defamation or breach of confidence, the grant of a request under the Act shall not be taken as constituting an authorisation or approval for the publication of the record concerned or any information contained therein either by the requester or any other person.

Sections 27(1)(b) & 27(1)(c)

I have decided to deal with these exemptions together as RTE has presented the same arguments in respect of both claims. Section 27(1)(b) of the FOI Act provides for the protection of financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 27(1)(c) provides for the protection of information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. RTE's argument is that the release of the salary details of the presenters in question could prejudice their abilities to negotiate contracts from other broadcasters and organisations. In other words, an organisation wishing to negotiate a contract with one of RTE's presenters would have prior knowledge of the presenter's salary which, in turn, might affect the negotiation positions of both parties. While this argument might have some merit were the disclosure of current salaries at issue, it seems to me that the release of historic salary details, which are now three or more years old, would not serve to influence negotiating positions to the extent that the conduct or outcome of those negotiations would be prejudiced.

RTE also argues that the release of presenters' salaries would allow competitors an unfair advantage in negotiations or approaches to its presenters. However, as I see it, the fatal flaw with this argument is that the presenters themselves are generally free to disclose their salary details in any negotiations with RTE's competitors. Furthermore, in the case of the two presenters who entered into contracts which contained clauses imposing a duty of confidence on both the presenters and RTE, it again seems to me that the release of historic salary details, which are now three or more years old, would not be likely to give rise to the harms identified by RTE. In the circumstances, I find that sections 27(1)(b) and 27(1)(c) do not apply.

Section 28

Section 28 of the FOI Act provides for the protection of personal information relating to a third party. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential (Section 2). The Act details twelve specific categories of information which is personal without prejudice to the generality of (a) and (b) above, including information relating to the financial affairs of the individual. However, section 2 of the Act also provides for the exclusion of certain information from the definition of personal information including "in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service..". The salaries of presenters who are or were providing a service for RTE under a contract for services clearly comes within this exclusion. Accordingly, I find that the information at issue does not constitute personal information for the purposes of the FOI Act.

RTE refers to a past decision of my Office in Case number 020248, Mr X and RTE, where my Office found that the disclosure of the specific salary of a journalist employed by RTE would involve the disclosure of personal information relating to that journalist. In that case, the journalist in question was on a salary scale which was applicable to the post held. The details of the salary scale had been released and the question before my Office was whether the precise point of the scale to which the journalist had been assigned should be released. My Office found that the assigning of an individual to a particular point on a scale can often derive from some personal aspect of an individual's life and, more particularly, that the disclosure of the journalist's specific point on the salary scale in the case in question would involve the disclosure of personal information about him. It should be noted that my Office found that the salary scale applicable to the post held by the journalist in question was information relating to the office or position held and did not constitute personal information. RTE argues in this case that presenters' salaries are determined by personal information such as previous income, experience, length of service, performance and qualifications. This may well be the case. However, the question I must consider is whether the disclosure of the salary details would involve the disclosure of personal information about the presenters in question. I am satisfied that it would not as the question of the disclosure of particular points on known salary scales does not arise. I find, therefore that section 28 does not apply.

I should add that an argument was made that the release of salary details might be a cause of embarrassment for some presenters at the lower end of the 25 highest paid. However, this argument would only be of relevance were I to accept that the information at issue is personal information and were I required to consider whether the public interest that the request should be granted outweighed, on balance, the public interest in protecting the right to privacy of the presenters in question. As I have indicated above, I find that the information sought does not constitute personal information.

Section 31(1)(c)

Section 31(1)(c) of the FOI Act provides for the refusal of a request where the public body considers that access could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. RTE's argument is that if details of individual salaries were released, its competitors may consider approaching its presenters by offering salaries above that offered by RTE in order to encourage them to work with them. Once again, the key flaw with this argument is that it ignores the fact that a presenter or his/her agent is already generally free to disclose his/her earnings to a competitor of RTE. I do not accept that RTE's competitors would not approach one of RTE's presenters simply because they are not aware of the details of the presenter's salary notwithstanding the fact that they might wish to offer him/her a contract. I find that RTE has not shown how the release of the information sought could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I find, therefore, that section 31(1)(c) does not apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of RTE in this case. I direct that access be granted to the details of the salaries which were paid to RTE's 25 highest paid presenters for the years 1998 to 2000.

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 eight weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this eight week time limit.

Yours sincerely

Emily O'Reilly
Information Commissioner