Whether RTÉ was justified in refusing access to records relating to, and arising from, correspondence between the applicant and RTÉ on the basis that the records fall outside the scope of the Act having regard to the FOI Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. No 115 of 2000)

22 May 2020

Background

The applicant in this case met with RTÉ staff members in the course of research its RTÉ Investigates team was conducting into care and nursing homes. The applicant was an employee of a specified nursing home. According to RTÉ, she was subsequently informed that the story was not being pursued, following which she sought a letter from RTÉ confirming that she had met with its team, but the letter sought was not issued.

In a request dated 29 November 2019, the applicant sought access to seven categories of records relating to her and/or the specified nursing home and to her subsequent correspondence with RTÉ and to a further category of records relating to her and a former employer. On 16 December 2019, RTÉ refused the request on the ground that the FOI Act does not apply to the records sought pursuant to the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. 115/2000).

On 30 December 2019, the applicant sought an internal review of the decision, following which RTÉ affirmed its original decision. On 29 January 2020, the applicant sought a review 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 correspondence between RTÉ and the applicant as outlined above and to correspondence between this Office and both RTÉ and the applicant on the matter. I have also had regard to the nature and contents of the records identified by RTÉ as coming within the scope of the request. I have decided to conclude this review by way of a formal, binding decision.

Scope of the request

In its initial submission to this Office RTÉ said it refused access to four records it identified as coming with the scope of the applicant’s request pursuant to S.I. 115/2000. During the course of this review, RTÉ released record three to the applicant. It also argued that record four was outside of the scope of the applicant’s request.

I note that part 3 of the applicant’s request is for copies of any emails, letters or text messages sent or received by RTÉ and two named staff members or any other employee/Agent of RTÉ, regarding her and the specified nursing home. While I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material, I believe I can appropriately describe record four as comprising an internal RTÉ email thread relating to the applicant’s request for a letter from RTÉ confirming that she had met with its team. I am satisfied that the record is captured by part 3 of the applicant’s request.

Accordingly, this review is concerned solely with whether RTÉ was justified in its decision to refuse access to records one, two and four.

Preliminary Issues

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Furthermore, as I have explained above, I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the records at issue and of the reasons for my decision is somewhat limited.

Analysis and Findings

On 1 May 2000, RTÉ became a prescribed body for the purposes of the FOI under S.I 115/2000. The Regulations provide that RTÉ is a public body for the purposes of the Act only as respects 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 RTÉ in respect of matters specified in Schedule 3, the FOI Act does not apply to them. The matters specified in Schedule 3 are essentially concerned with programming.

RTÉ argued that the records at issue are covered by the matters specified in parts 1, 2, and 4 of Schedule 3 and that the Act does not, therefore, apply to them. The relevant parts of Schedule 3 are as follows:

1. 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

(a) is produced on the basis of such information, or

(b) is broadcast.

2. The identification of any potential or actual source of information or material for the purpose of programme origination, whether or not such programme is produced or broadcast and without prejudice to the generality of the foregoing, shall include the consideration of programme proposal submissions from internal and external sources….

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.

Part 1 protects information held or created specifically for the making of a programme, whether or not it is made or broadcast. Part 2 provides for the protection of journalistic sources. Part 4 excludes from the FOI Act the process of making editorial decisions concerning programme or programme schedule content.

In its submission to this Office, RTÉ argued that the High Court found, in the case of RTÉ v the Information Commissioner [2004] IEHC 113, that a wide construct should be given to the scope of Schedule 3. It referred to the following comments by Ó Caoimh J.:

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 on 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 this schedule. If the functions in question can be broadly described as management functions but they entail the functions in Schedule 3 then they do not fall within the term of the management functions specified in Schedule 2….

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.

Records one and two relate to a meeting the applicant had with RTÉ staff. I am satisfied that they are captured by the matters specified in parts 1 and 2 of Schedule 3 and that they are therefore excluded from the scope of the FOI Act. As such, I find that RTÉ was justified in refusing access to records one and two on the ground that the Act does not apply to those records.

As I have described above, record four comprises an internal RTÉ email thread relating to the applicant’s request for a letter from RTÉ confirming that she had met with its team. RTÉ argued that parts 2 and 4 of Schedule 3 applies.

I do not accept that part 2 applies in this case. In the particular circumstances of the case, I do not believe that the record can be said to concern the identification of sources or potential sources of information or material.

In relation to part 4, RTÉ argued that record four flows from an editorial decision taken in relation to the use of information provided. While that may well be the case, I do not accept that the record can reasonably be described as concerning the process of making editorial decisions concerning programme or programme schedule content, notwithstanding the Court’s finding that a wide construct should be given to the scope of Schedule 3. I find, therefore, that RTÉ was not justified in refusing access to record 4 on the ground that the Act does not apply to it.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of RTÉ in this case. While I find that it was justified in refusing access to records one and two on the ground that the Act does not apply to them, I find that it was not justified in refusing access to record four and I direct the release of that record.

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