Case Number: 170145

Whether RTÉ was justified in refusing access to records relating to a named show and records relating to a named video on the basis that the records requested are exempt under sections 15(1)(a), 35(1)(b), 36(1)(b), 36(1)(c) of the FOI Act 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 13 July 2016, the applicant made an FOI request to RTÉ for the following information:

"1. Please provide full and all information related to the financial involvement of RTÉ in the production of [the named show featuring the named actor] including contracts re ownership of the intellectual property rights of the show and who has a say in the contents thereof.
2. I presume the set, costumes, cameras etc. that go into making the show possible are paid for by somebody, who is this?
3. Specifically, please advise who paid for [the named video featuring the named actor]?
4. Please advise who sanctioned the making of this video? Was the making of such a video known to senior RTÉ management? Are their minutes, letters etc. sanctioning the making of this video, if so, please disclose these under the FOI Act."

RTÉ did not issue an original decision within the time frame set down under the FOI Act, due to a delay in gathering the relevant records internally. On 26 September 2016, the applicant requested an internal review. On 11 October 2016, RTÉ issued its internal review decision. RTÉ refused access to seven co-production agreements which are relevant to parts one and two of the applicant's request, on the basis that the relevant records contain commercially sensitive and/or confidential information. RTÉ refused access to parts three and four of the request on the basis that the requested records do not exist (section 15(1)(a) of the Act). On 26 March 2017, the applicant applied to this Office for a review of RTÉ's decision.

During the course of the review, RTÉ provided submissions to this Office in which it argued that the co-production agreements 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 argued that, even if these records do fall within the scope of the FOI Act, they are commercially sensitive and contain confidential information. This Office informed the applicant of the additional ground relied on by RTÉ and provided the applicant with an opportunity to make a further submission.

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

The scope of this review is confined to the following issues:

- Whether RTÉ has justified its decision to refuse access to the records concerning the video under section 15(1)(a) of the Act on the basis that the records requested do not exist;

- Whether RTÉ has justified its decision to refuse access to the co-production agreements on the basis that these records fall outside the scope of the FOI Act having regard to S.I. 115 of 2000 or on the basis that they are exempt under sections 35 or 36 of the Act.

Preliminary Matters

The FOI Act confers a right of access, in certain circumstances, to records held by public bodies. If a request is made in the form of a question, public bodies will generally attempt to identify records which contain answers to the questions asked. The Act does not confer a general right of access to information. If information required by an individual is not contained in a record, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the required information. I note that at least parts of the applicant's request do not identify records as such.

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).

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

Section 15(1)(a)
RTÉ refused access to the records requested in parts three and four of the applicant's request on the basis that the records requested do not exist. Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. This Office's understanding of its role in such cases was approved by Mr. Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available on www.oic.ie).

The applicant states that RTÉ is a co-producer of the show. He argues that as a co-producer, RTÉ would have intellectual property rights in relation to the characters in the show. He states that the video referred to was shot in the part of one of the characters from the show. According to the applicant, sanction from RTÉ would be required in order to produce the video in the part of one of the characters from the show. The applicant also states that RTÉ pays for the lights, cameras, equipment, costumes and sets for the show and these costumes and sets etc. were used in the video. He argues that RTÉ must, therefore, have records which are relevant to the video.

During the course of the review, this Office put detailed queries to RTÉ in relation to the above.

RTÉ states that the only right attributable to it under the co-production agreements is the right to broadcast the show in Ireland. It states that the agreements do not provide RTÉ with intellectual property rights in relation to the characters from the show. RTÉ states that it has not used the characters outside of the show and it does not have records requesting RTÉ sanction for use of the characters outside of the show. According to RTÉ, its sets, lights, cameras and equipment are not used to produce the show nor were they used to produce the video. RTÉ states that its FOI Officer discussed the video with the RTÉ personnel responsible for the show and the relevant personnel confirmed that RTÉ had no involvement in making the video. RTÉ states, therefore, that it has no records which are relevant to parts three and four of the applicant's request.

I have examined the co-production agreements which were provided to this Office in relation to parts one and two of the applicant's request. I am satisfied that the agreements do not provide RTÉ with intellectual property rights in the characters of the show. Having regard to the detailed replies provided by RTÉ in response to queries from this Office, I am satisfied that RTÉ has taken reasonable steps to locate records relevant to the video. I find, therefore, that section 15(1)(a) of the Act applies to parts three and four of the applicant's request.

FOI Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. No 115 of 2000)
RTÉ argues that the seven co-production agreements which are relevant to parts one and two of the applicant's request fall outside the scope of the FOI Act, having regard to Statutory Instrument 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."

RTÉ states that the co-production agreements relate to the process of making editorial decisions concerning programme or programme schedule content. RTÉ provided this Office with submissions from its co-producer, who also argues that the co-production agreements concern editorial functions and fall outside the scope of the FOI Act, having regard to S.I. No. 115 of 2000.

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.
I have examined the seven co-production agreements closely and I am satisfied that they concern programme related functions. The records address issues of artistic and editorial control of the show and consultation over editorial creative elements, including inter aliathe script, casting, budget and director. The records also address scheduling, premier broadcast rights and hold-back on broadcast for specified periods. I accept therefore, that the co-production agreements are relevant to the process of making editorial decisions concerning programme or programme schedule content. I find that records one to seven are excluded from the Act, having regard to Schedule 3 paragraph 4 of the 2000 Regulations.
As I have found that these records 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 exempt under any other provision.

Decision

I affirm RTÉ's decision to refuse access to records relevant to parts three and four of the applicant's request on the basis of section 15(1)(a) of the Act. I affirm RTÉ's decision to refuse access to records one to seven 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