Whether RTÉ was justified in refusing access, under section 15(1)(c) of the FOI Act, to individual responses submitted as part of the public consultation undertaken prior to its new Public Service Statement on the ground that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work

8 February 2022

Background

This case has its background in a public consultation undertaken by RTÉ in 2021 whereby members of the public were invited to submit their views on the broadcaster. The purpose of the consultation was to inform RTÉ’s Public Service Statement which it is required to prepare every five years in line with the 2009 Broadcasting Act. The public consultation was undertaken by Behaviour & Attitudes (B&A) on behalf of RTÉ and comprised two parts; a nationally representative quantitative survey, and an open-invitation public consultation survey. A report of the process was published by RTÉ in July 2021 and is available at the following link: https://www.rte.ie/documents/eile/2021/07/rte-ba-public-consultation.pdf

In a request dated 14 July 2021, the applicant sought access to the following, relating to the public consultation to inform its new Public Service Statement:

1. A copy of the questionnaires used for the self-select online public consultation as well as the representative National Survey
2. A copy of all individual responses received to the open-ended question referred to on page 15 of the report of the public consultation linked above
3. A copy of the summarisation and aggregation analysis of those same open-ended responses which was undertaken as part of the analysis stage, again as referred to on page 15 of the report
4. A copy of all individual responses received to the open-ended question referred to on page 21 of the report relating to the principles that RTÉ should follow, with respect to both the national survey and the online public consultation
5. A copy of the summarisation and aggregation analysis of those same open-ended responses which was undertaken as part of the analysis stage and referred to on page 21 of the report. 

On 4 August 2021 RTÉ wrote to the applicant with regard to parts 2 and 4 of his request.  It indicated that many thousands of responses would be captured by those part. It said each individual response would need to be reviewed to see if it contained any information that could identify the individual concerned. As such it informed him that it was proposing to refuse those parts of the request under section 15(1)(c) of the Act (which is essentially concerned with the refusal of voluminous requests) unless he agreed to refine it, and it informed him that it would be happy to assist in refining the request. I understand that in a response dated 6 August, the applicant declined to narrow the scope of his request.

On 13 August 2021 RTÉ decided to part-grant the request. It provided records in response to parts 1, 3 and 5 of the request. It refused parts 2 and 4 under section 15(1)(c) on the ground that processing those parts would create a substantial and unreasonable interference with, and disruption of, work in RTÉ. 

On 7 September 2021, the applicant sought an internal review of that decision. While he acknowledged that the task of preparing the requested records for broader dissemination would be one that would involve time and effort, he argued that records of the kind sought, which deal directly with the public’s views about RTÉ, should be made available as a matter of course to the public. He also provided some background information as to why he was seeking access to the records in question. On 27 September 2021, RTÉ affirmed its refusal of parts 2 and 4 of the request. On 19 November 2021, 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 conducting my review, I have had regard to the 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 decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether RTÉ was justified in its decision to refuse parts 2 and 4 of the applicant’s request under section 15(1)(c) of the Act on the ground that granting the request would require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with, and disruption of, its work.

Preliminary Matter

Before I address the substantive issue arising in this case, I would like to make a number of preliminary comments. First, 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 records at issue, 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.

Secondly, the applicant argued in his correspondence both with RTÉ and with this Office that there is a strong public interest in the release of the records sought. Section 15(1)(c) provides for the refusal of a request on administrative grounds and it is not subject to a public interest balancing test. As such, I cannot have regard to the applicant’s arguments as to why he considers that release of the records at issue is in the public interest.

Analysis and Findings

Section 15(1)(c) of the FOI Act provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the FOI body concerned.

Section 15(4) provides that an FOI body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in an effort to amend the request for re-submission so that it no longer falls within paragraph (c). I am satisfied that in this case, RTÉ has done so. As outlined above, it wrote to the applicant on 4 August 2021 and informed him that it would be happy to assist in refining the request. In response, the applicant declined to narrow the scope of his request.

In establishing whether a request would cause a substantial and unreasonable interference with or disruption of work, the number of records which need to be retrieved and examined and /or the kind of examination which is required are relevant. A number of factors may have a bearing on this issue, such as:

- the nature and number of the records covered by the request;
- the location(s) in which they are held or stored and whether these are readily identifiable;
- how the records are stored or filed and the relevant filing system;
- the tasks or steps necessary to search for, identify, locate, retrieve and examine the records;
- the nature and number of the relevant records to be examined;
- the length of time and the personnel required to do so;
- the length of time required to consider the records in order to determine their relevance to - the request and whether they are appropriate for release; and
- the size, staffing levels and work of the FOI body (including the relevant functional area) concerned.

It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area, and not necessarily on the basis of disruption of work of the body as a whole.

In its submissions to this Office, RTÉ said that as the applicant did not refine parts 2 and 4 of his request, it was left with no other option but to refuse those parts of the request based on its voluminous nature. It said that were it to process those parts of the request it would have resulted in a substantial disruption to the work of its FOI Unit. It said that the information requested consists of a total of 16,777 responses to the two questions identified by the applicant in his request. It said that each of these responses would have to be read and, where appropriate, redacted as an indeterminate number of them contain personal information. It explained that B&A, who conducted the public consultation process on behalf of RTÉ, use a specific software as their survey scripting and storage software. It said that this software does not have any artificial intelligence capacity for reviewing text-based responses and therefore the analysis of the responses would need to be conducted manually.

RTÉ estimated that it would take its FOI unit approximately 276 hours to read and redact the records. In its submission to this Office, RTÉ provided specific details as to time resource was estimated. As those details have already been shared with the applicant I do not consider it necessary to repeat them further here.

In addition, RTÉ provided details on the staffing of its FOI Unit. It said that there are 1.8 employees in its FOI Unit and indicated if it was to work exclusively on the review of the records at issue then this would result in a significant disruption to the operation of the Unit for over a month. In addition, RTÉ said that B&A considers that its obligations under specific codes of conduct would also require that it would also have to review each response. It said B&A estimated that it would take around 250 hours work involving nearly one fifth of the company workforce for which it would charge RTÉ a considerable fee. 

In sum, RTÉ argued that to review and redact any personal information in the individual responses at issue would involve significant disruption to the proper functioning of its FOI Unit and that the provisions of section 15(1)(c) apply.  

In his submission to this Office, the applicant expressed dissatisfaction with the manner in which RTÉ dealt with his request and with the review process itself. He argued that it is reasonable to expect that RTÉ, as a public body, would routinely make available the content of individual submissions to a public consultation as a matter of course.  He argued that such transparency is in line with guidelines issued by the Department of Public Expenditure & Reform on public consultation exercises. With regard to the substantive issue of the applicability of section 15(1)(c), the applicant argued that RTÉ could have mandated that B&A prepare the survey responses for possible release under FOI. He argued that in relying on section 15(1)(c) to refuse access to two parts of his request, RTÉ was in essence relying on its own lack of administrative capacity to justify the refusal of his request.  While the applicant accepts that aggregate data has been published by RTÉ in its report, he considers that a failure to release the individual responses to be not consistent with the principles of openness and transparency in the FOI Act. He argued that only a cursory level of detail is set out in the report and it would be only through access to the full responses that such qualitative data could be utilised for academic research. 

As I have explained above, I cannot have regard to the applicant's motives for seeking access to the records at issue, nor can I have regard to his arguments as to why he considers that release of the records at issue is in the public interest. Moreover, I cannot have regard to whether or not RTÉ should be publishing the information at issue as a matter of good administrative practice. If the information is not publicly available, I must have regard to the FOI body’s arguments as to why it deems section 15(1)(c) to apply.

Moreover, I cannot accept the applicant’s argument that RTÉ could have mandated that B&A prepare the survey responses for possible release under FOI. If I was to do so, it seems to me that it would prove very difficult for any FOI body to ever rely on section 15(1)(c) to refuse a request where it was open to the body to outsource the processing of the request. Indeed, it seems to me that the need to outsource the processing of a request because of the resources that would be required to process it is indicative of the substantial and unreasonable nature of the interference with the work of the body that processing the request would cause.

I accept RTÉ’s explanation of the time and resources that would be required to retrieve and examine the records coming within the scope of parts 2 and 4 the applicant’s request in light of the substantial volume of records involved, regardless of B&A’s contention as to its role in that process. I accept that RTÉ would have to examine each of the records to ensure that release of the information in each record was appropriate for release. Given the required time resources required, I also accept that the processing the request would cause a substantial and unreasonable interference with, and disruption of the work of, its FOI Unit. I find, therefore, that RTÉ was justified in refusing parts 2 and 4 of the applicant’s request under section 15(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of RTÉ to refuse parts 2 and 4 of the applicant’s request under section 15(1)(c) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator