Case Number: 160264

Whether RTÉ was justified in refusing access to certain records relating to the position of Orchestral Assistant and Senior Orchestral Assistant of the National Symphony Orchestra, on the grounds that the records contain either personal information of third parties or legally privileged information

Conducted in accordance with section 22(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 6 January 2016, the applicant submitted a request to RTÉ for emails and correspondence between two named staff members from the beginning of November 2014 to December 31 2015 regarding the position of Orchestral Assistant and Senior Orchestral Assistant of the National Symphony Orchestra.

While RTÉ notified the applicant in its decision of 24 February 2016 that it was granting the request, a significant number of records were withheld, in whole or in part. On 22 March 2016 the applicant sought an internal review of RTÉ's decision. On 12 April 2016 RTÉ issued its internal review decision, refusing records under section 31(1) and section 37 on the basis that they are legally privileged or contain personal information relating to third parties.

The applicant sought a review by this Office of RTÉ's decision on 16 June 2016. In carrying out my review, I have had regard to the correspondence between RTÉ and the applicant on the matter and to the correspondence between this Office and both the applicant and RTÉ. I have also had regard to the contents of the records at issue, which were provided to this Office for the purposes of this review.

Scope of the Review

During the course of the review, RTÉ decided to release additional information contained in a number of the records at issue. It also provided the applicant with an updated schedule of records. In referring to the records at issue, I have adopted the numbering system used by RTÉ in that schedule. This review is concerned solely with the question of whether RTÉ was justified in its refusal to grant full access all records it identified as relevant to the applicant's request.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While RTÉ has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Secondly, while I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the contents of the records at issue in this case is somewhat limited.

Analysis & Findings

As this Office considered that both decision notifications to the applicant fell well short of the requirements of the FOI Act, it exercised its power under section 23 of the FOI Act to direct RTÉ to provide a fuller statement of reasons. RTÉ provided a more detailed response by letter dated 14 October 2016. In that response, it stated that it was relying upon the provisions of sections 30, 31 and 37 of the FOI Act as grounds for refusing access to certain information within the records sought. As section 37 is, in my view, of most relevance in this case, I will consider that exemption first.

Section 37(1)

Section 37(1) provides for the mandatory refusal of access to a record where the FOI body considers that access would involve the disclosure of personal information relating to individuals other than the requester. Personal information is defined, at section 2 of the FOI Act, as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential.

The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "information relating to the employment or employment history of the individual", "information relating to the individual's membership or former membership of a trade union", and "information relating to the individual in a record falling within section 11(6)(a)", i.e. a personnel record. A personnel record is defined by section 11(6)(a) as a record relating wholly or mainly to one or more of the following: the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body; or his or her employment or employment history; or an evaluation of the performance of his or her functions generally; or a particular such function as such member.

RTÉ argued that section 37(1) applies to the material redacted from records 3, 4, 6, 8-12, 17-19, 23-25, 35-39, 49, 53, 55 and 60. While RTÉ has cited other exemptions, I am also of the view that section 37 is of relevance in the case of records 13-16, 20-22 and 56. RTÉ identified record 60 as an email and an attachment and stated that it was redacting information contained therein under section 37. I note, however, that the email was released in full and that the attachment referred to in the email is an exact copy of record 53. Therefore, record 60 does not need to be considered further.

While I am constrained in the description I can give of these records, I can say that records 3, 4, 6, 8-12, 13-16, 17-19, and 20-22 consist of emails and attachments to emails that contain information relating to an individual or individuals other than the applicant concerning what can be described as industrial relations matters, while records 23-25, 35-39, 49 and 53 contain information relating to individuals other than the applicant concerning personnel type matters. I should point out that a number of the redactions do not explicitly mention a named individual. However, I am satisfied that the disclosure of that information would involve the disclosure of information relating to identifiable individuals. Having carefully considered the matter, I am satisfied that the disclosure of the information that has been redacted from the records concerned would involve the disclosure of personal information relating to individuals other than the applicant. I find, therefore, that section 37(1) applies.

RTÉ has redacted the name of a third party, a personal comment of an RTÉ staff member, and the names of RTÉ staff from record 55. While I agree that the disclosure of the third party's name and the personal comment of the staff member would involve the disclosure of personal information relating to those individuals, the names of staff members of FOI bodies and records created by them in the course of performing their functions are excluded from the definition of personal information. I find, therefore, that section 37(1) does not apply to the names of the staff members of RTÉ that have been deleted from record 55.

Record 56 consists of an email from a member of RTÉ's legal team. RTÉ redacted a comment from the record which relates to an individual's personal affairs. I find that section 37(1) applies to the comment in question.

There are some circumstances, provided for at section 37(2) and 37(5), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a record, which is otherwise exempt under section 37(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 at issue would benefit the third parties to whom the information relates, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting access to the information of which I have found section 37(1) to apply outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

While there is a public interest in the RTÉ being open, transparent and accountable in the manner in which it performs its functions, the FOI Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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. I am also cognisant of the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large. Accordingly, I find that the public interest in the release of the information at issue does not, on balance, outweigh the public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find the name of the third party individual and the personal comment of the RTÉ staff member contained in record 55, the comment relating to a member of RTÉ staff in record 56, and all of the redacted information in records 3, 4, 6, 8-12, 13-16, 17-19, 20-22, 23-25, 35-39, 49, and 53 to be exempt from release under section 37(1) of the FOI Act.

I further find that the names of the RTÉ staff members at issue in record 55 do not comprise personal information for the purposes of the FOI Act and that section 37(1) does not apply.
Having found records 13-16 and 20-22 to be exempt from release under section 37, it is not necessary for me to consider the applicability of any other exemption to those records.

Section 31(1)(a) - Legal Professional Privilege
RTÉ refused access to records 26-34 and 56 to 59 under section 31(1)(a). That section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). In deciding whether section 31(1)(a) applies, I must consider whether the records would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and

(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Records 26-34 comprise emails between RTÉ staff and between RTÉ staff and internal and external legal advisors. As well as protecting confidential communications between the client and his/her professional legal adviser, this Office takes the view that privilege also attaches to records that form part of a continuum of correspondence that results from the original request for advice. Having carefully examined the records, I am satisfied that RTÉ was justified in refusing access to these records under section 31(1)(a).

Records 56-59 are similar in nature to records 26-34. However, RTÉ has released the vast majority of the information contained in these emails. It has redacted the names and contact details of RTÉ staff, their internal and external legal advisors, as well as certain pronouns referring to those individuals. However, the legal advice given and discussed has been released. As this key information has been released, I do not accept that the remainder of the information, i.e. the names of RTÉ staff, their internal and external legal advisors, and certain pronouns referring to those individuals, fall within the scope of section 31(1)(a). Furthermore, as I have set out above, the names and details of FOI body staff members recorded in the course of their duties is not considered to be personal information for the purposes of the FOI Act, nor is the name of an individual who is or was a service provider for an FOI body. Consequently, the question of the applicability of section 37 to this information does not arise.

I find, therefore, that while RTÉ is justified in withholding access to the information contained in records 26-34 under section 31(1)(a) of the FOI Act, it was not justified in refusing access to the information redacted from records 56-59.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary RTÉ's decision. I find that RTÉ was not justified in refusing access to the names of the RTÉ staff members in record 55 under section 37, or to the names and contact details of RTÉ staff, their internal and external legal advisors, and certain pronouns referring to those individuals contained in records 56-59 under section 31(1)(a). I direct release of that information. I affirm RTÉ's refusal of all remaining information in the records at issue under sections 31(1)(a) and 37(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator