Whether RTÉ was justified in refusing the applicant’s request for records relating to Garda bugging issues featured on the “This Week” programme and any other RTÉ News programmes on 1 March and 1 November 2015, on the ground that the records sought are exempt from release pursuant to the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000

30 September 2019

Background

On 28 February 2019, the applicant sought access to “a copy of the entire records and transcripts etc., etc., under the Freedom of Information Acts, 1997-2014 in connection with the Garda bugging issues featured on the “This Week” Radio One programmes broadcast circa 13.00 hours – 14.00 hours on Sundays 1 March and 1 November 2015 respectively, and if applicable any other RTÉ News feature programmes etc., on those dates or subsequent dates etc., in the intervening period.”

On 5 March 2019, RTÉ wrote to the applicant to explain why it was likely to refuse his request. It stated that it was not clear from the wording of the request the exact records or types of records the applicant was seeking. It stated that the request was likely to be refused on the basis that records relating to programme making and journalism within RTÉ are outside the scope of the FOI Act. It further stated that it did not hold transcripts of the programmes specified but that the programmes were available on its radio player.

Finally, RTÉ stated that the almost four year time period captured by the request would require it to review thousands of programmes to ascertain if they discussed Garda bugging. It invited the applicant to refine his request in order to allow it to be processed.

The applicant mistakenly interpreted RTÉ’s letter as a decision to refuse his request and on 12 March 2019 he sought an internal review of the refusal of his request. He did not provide any further express clarification of the records sought.

On 13 March 2019, RTÉ issued its decision in which it refused the request under section 15(1)(b) on the ground that the request did not contain sufficient particulars in relation to the records sought to allow them to be identified.

On 24 April 2019, the applicant sought an internal review of that decision. In his letter to RTÉ, he stated that his request “simply sought … the data/information carried or aired on the Garda bugging issues featured on the “This Week” Radio One programme broadcast … on … 1st March and 1st November 2015 respectively and any other RTÉ News feature programmes etc., on those dates…”. He stated that he did not have access to the internet and he asked that this matter be considered when processing his application for internal review.

On 21 May 2019 RTÉ issued its internal review decision in which it refused the request on the ground that the records sought are exempt pursuant to the provisions of the Freedom of Information Act 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (the Regulations of 2000). On 24 June 2019, the applicant sought a review of by this Office of RTÉ’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between RTÉ and the applicant as set out above, and to the correspondence between this Office and both RTÉ and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether RTÉ was justified in refusing the applicant’s request for records relating to Garda bugging issues featured on the “This Week” programme and any other RTÉ News programmes on 1 March and 1 November 2015, on the ground that the records sought are exempt from release pursuant to the Regulations of 2000.

Preliminary Matters

Before I address RTÉ’s arguments for refusing the request, I would like to make a number of preliminary comments, the first of which relates to the records captured by the applicant’s request.

In its submissions to this Office during the course of the review, RTÉ stated that its internal reviewer considered that what was being sought was the relevant journalist’s notes and programme related notes. It identified eight records that it considered to fall within the scope of the request. On the matter of the transcripts sought, it explained that no such transcripts existed. Nevertheless, in an effort to assist the applicant, it subsequently created and provided transcripts of the relevant news programmes specified, notwithstanding the fact that there was no requirement on it under the FOI Act to do so.

It is entirely understandable, in my view, that RTÉ found it difficult to identify the precise records sought by the applicant in this case. The wording of the original request was both broad and vague. Indeed, having had the benefit of considering the applicant’s submissions to this Office during the course of the review, It seems to me that he may simply have been seeking access to the transcripts of the relevant programmes. However, while he has since received those transcripts, he has not informed this Office that he is satisfied with the information provided. Accordingly, I consider it appropriate to proceed with my consideration of RTÉ’s refusal of the eight records it deemed to fall within the scope of the request. I do not propose to give any further consideration to the transcripts.

The second preliminary point I wish to make concerns the remit of this Office. In his submission to this Office, the applicant expressed his dissatisfaction with the manner in which RTÉ, the Press Ombudsman and the Broadcasting Authority of Ireland had engaged with him since 2015 in response to his efforts to obtain the information sought. He contended that RTÉ had thwarted and frustrated his attempts to correct matters referred to in the news programmes concerned. The applicant also expressed his unhappiness that RTÉ did not contact him before or after the programmes were broadcast, despite his personal interest in the matter.

The role of this Office does not extend to examining the actions of RTÉ or any other organisation or person in dealing with the applicant’s concerns regarding the programmes or their content. Our role in this case is solely to review RTÉ’s decision in relation to the request made on 28 February 2019. Furthermore, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and findings

On 1 May 2000, RTÉ became a prescribed body for the purposes of the FOI under the Regulations of 2000. These Regulations provide that RTÉ is a public body for the purposes of the Act only in respect of certain functions described in Schedule 2, namely management, administration, finance, commercial, communications, and the making of contracts of, or for, service with any person, company or other body. However, 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. In other words, if the records sought are held by RTE in the context of matters specified in Schedule 3, they fall outside the scope of the Act.

In its submission RTÉ specifically cited the exclusions at parts 1 and 4 of Schedule 3. Part 1 concerns the “gathering and recording in any form of news, information, data, opinions, on or off the record quotes or views from any person or source, for journalistic or programme content purposes, whether or not a programme is produced on the basis of such information, or is broadcast”.

Part 4 concerns 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."

The records identified by RTÉ in this case concern the gathering of news for journalistic or programme purposes and the process of making editorial decisions concerning programme content. I find, therefore, that the records in question, and any other records that RTÉ might hold concerning such matters, are excluded from the scope of the FOI Act pursuant to Schedule 3 of the Regulations of 2000 and that RTÉ was justified in refusing to release them.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ's refusal of the applicant’s request for records relating to Garda bugging issues featured on the “This Week” programme and any other RTÉ News programmes on 1 March and 1 November 2015, on the ground that the records sought are exempt from release pursuant to the Regulations 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.

 

 

 

Stephen Rafferty

Senior Investigator