Case Number: 160336

Whether RTÉ was justified in refusing access to records relating to a programme broadcast in April 2016 on the basis that the records are exempt under section 36(1)(b) and 36(1)(c) or otherwise

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

Background

On 18 April 2016, the applicant made an FOI request to RTÉ for access to records which contain the following information:

"Details of the amount of money paid to a [named] production company for a [named] interview, which aired in April 2016, any breakdown of how this money was spent plus all correspondence between RTÉ and the production company regarding the documentary."

On 15 June 2016, RTÉ refused the applicant's request on the basis that the records contain commercially sensitive information (section 36(1)(b) and 36(1)(c) of the Act). The applicant requested an internal review of RTÉ's decision. On 23 June 2016, RTÉ upheld its original decision. On 16 August 2016, the applicant applied to this Office for a review of RTÉ's decision.

During the course of the review, the applicant confirmed in writing to this Office, that he was agreeable to narrowing the scope of his request to:

"Records which relate to money or expenses paid to a [named] individual or members of the individual's family in connection with the documentary"

This Office informed RTÉ of the revised request and identified the records that fall within the scope of the revised request. Following consultations with the production company and the individuals to whom the records relate, RTÉ argued that the records identified should not be released. RTÉ said that the records fall outside the scope of the FOI Act, having regard to the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations 2000 (S.I. No. 115 of 2000). RTÉ also argued that, even if the records do fall within the scope of the FOI Act, they are commercially sensitive.

This Office informed the applicant of the additional grounds relied on by RTÉ. In reply, the applicant argued that the records requested do not fall within the exclusion in S. I. 115 of 2000 and are not commercially sensitive and should be released in the public interest.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between RTÉ and the applicant, to correspondence between RTÉ and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of the Review

A number of the records originally identified by RTÉ as relevant to the applicant's request, were created after the date of the request. Those records have not been considered for the purposes of this review. Two records fall within the scope of the applicant's narrowed request. The scope of this review is confined to the following issue:

- Whether RTÉ has justified its decision to refuse access to records 1 and 2 on the basis that the records fall outside the scope of the FOI Act having regard to S.I. 115 of 2000, or on the basis that the records are commercially sensitive and are exempt under section 36(1)(b) or 36(1)(c) of the FOI Act 2014.

Preliminary Matters

Section 13(4) of the FOI Act provides that, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on RTÉ to satisfy the Commissioner that its decision to refuse access to the records was justified.

Although 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 which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

The Records
Record one was created by the production company in March 2016. It contains an email from the production company to RTÉ in relation to contributors to the programme.

Record two was created by the production company a number of days after the programme was broadcast in April 2016. It contains an email from the production company to RTÉ in relation to the programme.

RTÉ argues that records one and two fall outside the scope of the Act, having regard to Statutory Instrument No. 115 of 2000.

Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000
(S.I. No 115 of 2000)
RTÉ was brought under FOI in 2000, further to Statutory Instrument No. 115 of 2000 (the Regulations). Those Regulations, which continue in force further to section 54(2) and Schedule 5 of the FOI Act 2014, specify the extent to which RTÉ is subject to FOI. Schedule 2 of the Regulations provides that the following functions fall within the remit of the Act:

1. Management.
2. Administration.
3. Finance.
4. Commercial.
5. Communications.
6. Making of contracts of or for services 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 of the Regulations. Amongst the excluded matters are:

"4. The process of making editorial decisions concerning programme or programme schedule content which, without prejudice to the generality of the foregoing, shall include preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions.

5. The process of post-transmission internal review analysis of any programme or schedule of programmes broadcast."

The Applicant's submissions
In his submissions to this Office, the applicant states that RTÉ did not rely on the 2000 Regulations in its original decision or internal review decision. The applicant states that his revised request seeks only details of expenses or fees paid in relation to the programme and in no way interferes with editorial decisions or post-transmission analysis. The applicant argues that there is a public interest in members of the public having information on how RTÉ uses public funds.

RTÉ's submissions
According to RTÉ, record one was created as part of the process of pre-transmission editorial decision making. It argues that the decision involved is an editorial decision. According to RTÉ, the issue would have a material editorial impact on the programme because it would substantially impact on the relationship between the participants and the production company. RTÉ refers to its Journalism Guidelines in support of its arguments that the decision involved is editorial in nature. It argues that record one falls outside the scope of the FOI Act having regard to Schedule 3, Paragraph 4 of the 2000 Regulations.

RTÉ states that record two was created as part of RTÉ's post-transmission review and analysis of the programme. It argues therefore, that record two falls outside the scope of the FOI Act on the basis of Schedule 3, Paragraph 5 of the 2000 Regulations.

RTÉ provided this Office with a copy of the submissions it received from the production company. The production company also contends that the records are excluded from the Act by virtue of Schedule 3 of the 2000 Regulations. RTÉ states that it consulted with the individuals to whom the records relate and they confirmed that they were not in favour of release of the records.

The application of the FOI Act to records held by RTÉ was considered by the High Court in RTÉ v. the Information Commissioner [2014] IEHC 113. That case involved records of data collected on the amount of broadcast time allocated to political parties during a general election campaign. In his decision, Ó Caoimh J. stated the following in respect of the application of the 2000 Regulations:

 

"It must be said however, that if the role in question was one involving the functions specified in Schedule 3 that they must be deemed to be excluded from the term management in relation to the functions contained in Schedule 2. I consider that the deeming provision contained in Article 2 (3) of the Regulations of 2000 is such that it cannot be said, in applying a wide construction to Schedule 3, that one is failing to construe narrowly an exception to the provision in question. I am satisfied that the functions in Schedule 2 must by reason of the deeming provision be construed somewhat narrowly in the first place. Accordingly, the essential focus in these proceedings is and must be Schedule 3 and the various paragraphs thereof in assessing whether the functions giving rise to the data sought in these proceedings are functions encompassed by the terms of the schedule. If the functions in question can be broadly described as management functions but they entail functions in Schedule 3 then they do not fall within the term of the management functions specified in Schedule 2.

... I believe that it is clear from the reading of the schedule that the matters sought to be excluded from Schedule 2 were programme related functions.

...The use of words such as process of making editorial decisions clearly suggest a wide connotation but it is not restricted to the editorial decision itself but the broader context of the process of making such decisions."

Ó Caoimh J. held that the Commissioner had erred in law in his construction of the Regulations when applied to the facts in that case. Record one was created a month before the programme was broadcast. At that time RTÉ and the production company were exchanging correspondence in relation to matters such as proposed production schedules, proposed budget and proposed editorial specification. I accept that record one was created as part of the broader context of the process of making editorial decisions. I find, therefore, that record one is excluded from the Act, having regard to Schedule 3 paragraph 4 of the 2000 Regulations.
Record two was created after the programme was broadcast. At that time RTÉ and the production company were exchanging correspondence in relation to the programme. I accept that record two was created in the context of RTÉ's post-production analysis of the programme. I find that record two is excluded from the Act having regard to Schedule 3 paragraph 5 of the 2000 Regulations.

As I have found that records one and two relate to functions of RTÉ deemed not to be included for the purposes of prescribing RTÉ as a body for FOI purposes under the FOI Act, it is not necessary to determine whether the records are commercially sensitive. Furthermore, it is not appropriate to consider whether the public interest favours release of the records.

Decision

I affirm RTÉ's decision to refuse access to records one and two on the basis that the records are excluded from the FOI Act, having regard to Schedule 3 paragraphs 4 and 5 of S.I. No. 115 of 2000.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator