Whether RTÉ was justified in refusing to release the identities of payees and additional details of payments arising out of legal complaints from January 2010 to February 2014

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 6 February 2014, the applicant submitted a two part request to RTÉ for certain information including, at Part 1, copies of records showing the amount of damages paid by RTÉ arising out of legal complaints from January 2010 to February 2014, to include details of the programme involved, if any, and the recipient of the money. The sequence of events relating to that part of the request, being the only part that is relevant to this review, is as follows:

On 7 May 2014, RTÉ refused to release records relating to the first part of the applicant's request and stated that it was continuing to process the second part. On 13 June 2014, the applicant applied for an internal review on the ground that RTÉ had not responded to his request. On 31 December 2014 the applicant sought a review by this Office, as he had not received a reply to his request for internal review from RTÉ.

Following correspondence with this Office, RTÉ issued a letter setting out its effective decision on the applicant's request on 27 January 2015. It upheld the decision maker's decision to refuse access to records relating to part 1 of the applicant's request. This Office then closed the file relating to his application for review. On 4 February 2015, the applicant made a further application to this Office for a review of RTÉ's effective decision to refuse records relating to part 1 of his request.

During the course of this review RTÉ released certain limited information to the applicant in relation to his request in an attempt to settle the case. The applicant has indicated that he is not satisfied with the information released. Accordingly I have decided to conclude this case by way of a formal, binding decision. In conducting this review I have had regard to the communications between RTÉ and the applicant, to the submissions of RTÉ and the applicant, and to the nature of the information sought.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

There are two category of payments at issue in this case. Firstly, there are details of payments made in respect of various individual personal injury and third party/employer's liability claims. Secondly, there are payments made in respect of individual legal claims from 2010-2014 under the headings TV, Radio or News Programme and Corporate Cases.

In respect of the first category, RTÉ released a list of payments made from 2010 to 2014 containing details of the type of incident (e.g. third party vehicle damage), class of claim (e.g. Employers Liability), the year of the incident, and the amount paid. It refused access to the name of the payee in each case.

In respect of the second category, it released details of the total amount paid in each year. It should be noted that the figures released reflected all of the payments made in respect of legal claims with the exception of one particular payment. However, it refused to release individual details as sought by the applicant, i.e. the specific amounts paid, the names of the payees and the programme involved.

Accordingly, this review is concerned with whether RTE's decision to refuse access to the information identified above was justified.

Preliminary Matter

While I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record or information which, if it were included in a record, would cause the record to be an exempt record. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons which I can give for my findings is limited.

Analysis and Findings

RTÉ sought to refuse access to the information sought under sections 21 (functions and negotiations of public bodies), 22 (legal professional privilege), 23 (release likely to prejudice or impair the fairness of civil proceedings), 26 (confidential information), 27 (commercially sensitive information) and 28 (personal information) of the FOI Act. Having carefully examined the records in question, it appears to me section 28 is of most relevance. Accordingly, I will consider the applicability of section 28 to the information at issue in the first instance.

Section 28(1)
Section 28(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information relating to individuals other than the requester. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The Act details twelve specific categories of information that are included in the definition. These categories include "(ii) information relating to the financial affairs of the individual".

The details of the payments made in both categories of payments as described above clearly relate to the financial affairs of the recipients of the payments. I am satisfied that the release of the details of the recipients of the payments and the amounts they received would disclose personal information relating to the individuals concerned. I have considered whether it might have been possible for RTÉ to release details of the amount paid, associated with the particular programme. RTÉ argues that releasing such details would also involve the disclosure of personal information relating to identifiable individuals. In the particular circumstances of the case, I agree. For the sake of completeness, I should add that I am also satisfied that the disclosure of the amount of the payment that has been withheld from the total amount paid each year in connection with the second category of payments described above would involve the disclosure of personal information relating to an identifiable individual. Accordingly, I find that section 28(1) applies to the information at issue.

Sections 28(2) and 28(5)

The exemption contained in section 28(1) is subject to the provisions of sections 28(2) and 28(5) of the Act. Section 28(2) of the Act sets out circumstances where section 28(1) does not apply. I am satisfied that none of the provisions in section 28(2) apply in this case. Section 28(5) of the Act provides that a record which is otherwise exempt from release under section 28(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual.

I do not consider that the release of the information sought would benefit the individuals to whom it relates, as envisaged by section 28(5)(b) of the FOI Act, nor has the applicant made any argument in this respect. On the matter of whether the public interest in release of the information outweighs, on balance, the public interest in upholding the privacy rights of the individuals to whom the information relates, the applicant's argument is essentially that RTÉ is a public body, in receipt of public funds, subject to FOI and release of the records in full would allow it to be properly held to account. I accept that there is a strong public interest in optimising openness, transparency and accountability in relation to RTÉ given the significant public funding it receives.

However, this public interest in favour of the release of the information sought must be balanced against the public interest in upholding the privacy rights of the individuals to whom the information relates. The applicant cited a number of previous cases where public bodies have released records relating to the expenditure of public funds, the specific cases mentioned related to payments made to members of the Oireachtas or companies providing goods or services to a public body under a contract for service. The individuals in those cases voluntarily entered into arrangements with public bodies for the provision of services, property, etc, for which State monies were payable. In this case, the payments were made to private individuals who had taken a legal action of some sort against RTÉ that resulted in a payment. In my view the circumstances of the payments are very different and the same arguments for release do not apply.

The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In my view, the release of the details at issue would result in a significant breach of the rights to privacy of the individuals concerned. It also seems to me that the public interest in the promotion of openness and accountability has been served to some extent by the limited information released by RTÉ to the applicant to date. While the release of the records in full would serve to further enhance the level of openness and accountability, I do not

believe that the public interest in so doing is sufficiently strong to outweigh the public interest in ensuring that the privacy rights of the individuals in question are protected.

I note that the applicant argues that the Houses of the Oireachtas released records in 2009 disclosing details of out-of-court settlements paid to named individuals in response to an FOI request. However, this does not mean that RTÉ should be required to release the information at issue in this case. Accordingly, I find that RTÉ was justified in its decision to refuse to release details of the specific amounts paid, the names of the payees and, where appropriate, the programme involved.

Having found that RTÉ was justified in refusing access to the information sought under section 28(1), I do not need to consider the other exemptions claimed as a basis for refusal in this case.

Decision

I hereby affirm the decision of RTÉ not to release further details of the specific amounts of damages paid from 2010 to 2014, the names of the payees and, where appropriate, the programme involved.

Right of Appeal

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 on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator