Whether RTÉ was justified, under sections 15(1)(g), 30(1)(a), 31(1)(a), 36(1) and 37(1), in refusing access to certain records relating to a legal case taken by the applicant against RTÉ

23 February 2023

Background

This case has its background in a defamation case that the applicant took against RTÉ a number of years ago. The case was ultimately settled, with RTÉ paying damages to the applicant and paying his legal costs. On 26 January 2022, the applicant submitted an FOI request to RTÉ for all records concerning that legal case. RTÉ refused the request on 16 February 2022 under section 31(1)(a) of the FOI Act, stating that the records sought were legally privileged. The applicant sought an internal review of that decision on 2 March 2022. RTÉ affirmed its decision to refuse the request on 29 April 2022.

On 10 May 2022, the applicant sought a review by this Office of RTÉ-�s decision. Among other things, he said he had been defamed by RTÉ and refused the right to reply. He said he has spent many years trying to get information about the settlement amount paid by RTÉ, the fees and costs deducted, and the terms and conditions of the agreement. He said his solicitors had told him that all records associated with the case have since been destroyed. He also made a detailed submission on the question of legal privilege.

Further to being notified of the application for review by this Office, RTÉ engaged with the applicant and sought to reach a settlement with him. Acknowledging the concerns raised in his application for review, it provided him with two records: a copy of the authority signed by him for RTÉ to pay the settlement cheque to his solicitors-� client account, and a copy of the letter from RTÉ to his solicitors accompanying a cheque in respect of legal fees. The actual settlement amount paid by RTÉ and the total legal costs paid by RTÉ to the applicant-�s solicitors were specified in the records released. Having reviewed these records, the applicant remained dissatisfied and confirmed that he wished the review by this Office to continue.

The legal file held by RTÉ in relation to the defamation case contains almost 700 pages of documents. The Investigator spoke to the applicant and it was agreed that, having regard to the kind of information he was looking for, the scope of the review would be confined to two categories of records within the file: Part 2 (inter parte correspondence) and Part 6 (correspondence with the legal costs accountants). In the copies provided to this Office, RTÉ numbered the inter parte correspondence as records 1 to 46, and the correspondence with the legal costs accountants as records 47 to 55; I have adopted this numbering in the decision.

RTÉ made submissions to this Office in which it also invoked section 15(1)(g) of the FOI Act, arguing that the request in its entirety should be refused on the grounds that it was vexatious. It maintained its position that the records were legally privileged. However, it nonetheless provided the applicant with copies of the inter parte correspondence on the basis that he should have had access to them from his solicitors anyway. It redacted some third party personal information from the records and withheld 3 pages from record 41, under section 37 of the Act. In relation to the correspondence with the legal costs accountants, it argued that those records were exempt from release, in whole or in part, under sections 30(1)(c), 31(1)(a), 36(1) and 37(1) of the Act. The Investigator informed the applicant of the additional sections of the FOI Act cited by RTÉ and was given an opportunity to comment, which he did.

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 submissions made by RTÉ and by the applicant, and to the correspondence between the parties and with this Office. I have also examined the records at issue. 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 refusing to release the correspondence with the legal costs accountants (records 47 to 55) and three pages from record 41 in the inter parte correspondence, under, variously, sections 15(1)(g), 30(1)(c), 31(1)(a), 36(1) and 37(1) of the FOI Act.

Some minor personal information (e.g. mobile phone numbers) was redacted from the inter parte correspondence under section 37(1); the applicant agreed that this could be omitted from the scope of the review.

Preliminary Matters                                                                       

Before addressing the substantive issues, I wish to make a few preliminary comments.

First, in his correspondence with RTÉ and with this Office, the applicant raised concerns relating to the original lawsuit and in particular about the amount of legal fees paid to his solicitors at the time, and how such an amount was agreed. He reiterated that he had not been given a right to reply by RTÉ and requested a public apology.

Section 13(4) provides that, subject to the other provisions of the Act, any reason that the requester gives for the request shall be disregarded when deciding on whether to grant or refuse an FOI request. This means that this Office cannot generally 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, or, for example, when considering whether the request is frivolous or vexatious. 

Secondly, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties.

Finally, 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 in this case and of the reasons for my decision is somewhat limited.

Analysis and Findings

Section 15(1)(g): Frivolous or vexatious

Section 15(1)(g) provides that an FOI body may refuse to grant a request where it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. RTÉ did not refuse the applicant-�s request at either the original decision or internal review stage under section 15(1)(g). However, in its submissions to this Office in the course of the review, it said it considered the section to apply to its refusal to release the correspondence with legal costs accountants only.

While section 15(1)(g) identifies three specific characteristics which may lead to a decision to refuse a request, there may often be a degree of overlap. For instance, a request that is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.

Generally speaking, a request is considered by this Office to be frivolous or vexatious where it has been made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. We have previously set out a number of non-exhaustive factors that we consider relevant in assessing whether a request may be categorised as frivolous or vexatious and regard those non-exhaustive factors as equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. This approach was endorsed by the Court of Appeal inGrange v Information Commissioner[2022] IECA 153. The factors include, but are not limited to:

1. The actual number of requests filed: are they considered excessive by reasonable standards?
2. The nature and scope of the requests: for example, are they excessively broad and varied in scope or unusually detailed? Alternatively, are the requests repetitive in character or are they used to revisit an issue which has previously been addressed?
3. The purpose of the requests: for example (a) have they been submitted for their "nuisance" value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?
4. The sequencing of the requests: does the volume of requests or appeals increase following the initiation of court proceedings or the institution or the occurrence of some other related event?
5. The intent of the requester: is the requester's aim to harass government or to break or burden the system?

It is also important to note that, as stated earlier, while section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g).

Submissions

In its submissions, RTÉ said that considering the requirements under FOI for public bodies to engage in openness and transparency, it did not cite the s.15(1)(g) exemption lightly and that it opted to do so sparingly i.e. only in relation to the correspondence with the legal costs accountants. It said it was evident that the applicant was pursuing a private grievance against his solicitors, using an FOI request and RTÉ as a vehicle to achieve this. It submitted that this was a vexatious use of the legislation.

RTÉ said that the claim against it was settled and damages paid to the applicant, through his solicitor, approximately a decade ago. Furthermore, it said that his legal costs were negotiated and paid to his solicitor in 2013. It said that in his initial request, the applicant sought all records relating to the legal case but it later became clear that he was actually looking for details of payments made to him and to his solicitor. RTÉ said that this represented a narrowing of the request and that, following confirmation of this with the applicant, and in an effort to resolve the issue, RTÉ provided him with the information requested by providing copies of records that state the settlement figure and how much RTÉ agreed to pay his solicitors in fees for the case.

It said that if there were any issues in relation to these costs, the option would have been available to the applicant to have the matter dealt with by taxation. RTÉ said that if, as the applicant claims, he now has an issue with the solicitors, then that is a matter for him to discuss with them and, ultimately, the Legal Services Regulatory Authority. It said that how the monies in question were treated once received by the applicant-�s solicitors is clearly not an issue for RTÉ and that it holds no records regarding this.

RTÉ said that it believed that the applicant was using FOI and RTÉ to further a grievance with his solicitors despite the fact that the records he had specified, subsequent to the narrowing of the request, had been released to him. RTÉ contended that this was a vexatious use of the legislation. It said that it was not its position that the request was frivolous or formed a pattern of abuse of the FOI process.

RTÉ said that to meet the threshold of a request being refused under section 15(1)(g) does not require a certain volume of requests or repeated pattern of requests to form an opinion. It said that one request is sufficient, in the wider context of that request together with subsequent correspondence. It said that the FOI request was made in bad faith and concerned a personal grievance, and is not a matter of the wider public interest or holding a public body to account. It said that the applicant-�s objective -� his grievance with his solicitors -� is unrelated to the process of accessing records. RTÉ pointed to the Court of Appeal decision inGrange v Information Commissionerin support of its position.

The applicant said that his request was not vexatious and that no court would deem it vexatious. He said that it was a means for RTÉ and his solicitors to obscure the facts and discriminate against him, the plaintiff, and to -�protect the defendant-�.

My Analysis

As I outlined above, this Office considers that a request may be regarded as frivolous or vexatious where it has either been made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. RTÉ-�s argument appears to be based on its concerns that the applicant is using the FOI Act to pursue a private grievance that has nothing to do with RTÉ. In my view, the fact that an FOI request might be driven by a particular agenda does not mean that the request is necessarily vexatious. I see nothing wrong with a requester seeking access to records that the requester considers might assist in the pursuit of a grievance. This is an entirely different situation to one where the requester seeks to use the FOI process itself as part of a strategy for pursuing or prolonging a grievance with an FOI body.

In this case, the applicant has sought access to records he believes may be of relevance to his dispute with his solicitors. RTÉ has clearly taken the view that the records it holds that are of relevance to that dispute have already been released to him. While that may well be the case, and while RTÉ-�s contention that he would be better placed to pursue this grievance directly with the solicitors or through the Legal Services Regulatory Authority seems to me to be a reasonable contention, the applicant appears to have sought access to the records so that he can establish for himself what is and is not relevant. This does not mean that the request was made in bad faith, in my view. It is just one request, it is relatively narrow in scope, and there is no evidence to suggest that the applicant-�s aim is to harass RTÉ or to break or burden it. Nor is it apparent that the request was submitted for nuisance value. On balance, taking all the circumstances into account, I am not satisfied that section 15(1)(g) applies.

Section 36: Commercially sensitive information

While RTÉ refused part of record 41 in the inter-parte correspondence under section 37, it noted in its submissions to this Office that section 36 could also be relevant to this record. Having examined record 41, I consider it appropriate to examine the applicability of section 36 to the record, as well as to the legal costs accountants-� correspondence. This is in keeping with the de novo nature of a review by this Office, which means that that it is based on the circumstances and the law as they pertain at the time of the decision.

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release.

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. 

As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by providing the following description. Records 47 -55 comprise correspondence between RTÉ and its legal costs accountants relating to the settlement of legal costs with the applicant-�s solicitors after the settlement of the case. Record 41 contains the detailed breakdown of the original amount of costs claimed by the applicants-� solicitors and barristers, before negotiations took place leading to the final settled amount that was actually paid.

RTÉ argued that release of the records would prejudice the competitive positions of the named lawyers involved in the case as they would reveal what they sought to charge and by how much they were willing to reduce their fees in relation to settlement by RTÉ. It said that this would allow others to see how much they were paid and how much they could seek to reduce their fees should they engage them. In addition, it said that the records were commercially sensitive to RTÉ and would prejudice RTÉ-�s competitive position when trying to resolve cases in future. It argued that by examining the difference between what was sought and what was finally agreed, that prospective counsel would seek to start with even higher fees knowing that they would be reduced which would harm RTÉ-�s commercial position in trying to get the best value for money.

Having carefully examined the records at issue, I note that they contain a detailed breakdown of costs originally submitted to RTÉ by the applicant-�s solicitors and two barristers and the correspondence between RTÉ, the legal costs accountants, and the applicant-�s solicitors in the context of negotiating a final agreed fee amount that RTÉ then went on to pay. It seems to me that release of these records could prejudice the competitive position of the lawyers involved, the legal costs accountants and RTÉ, notwithstanding that the records are approximately ten years-� old, in that they reveal the reduction of fees that were negotiated in proportion to the original amount billed. Furthermore, the records reveal RTÉ-�s and the legal costs accountants-� positions and approaches in negotiating what fees they are willing to pay. I accept that this information could potentially be used, in future legal cases, to the detriment of the parties involved.

I accept that section 36(1)(b) applies to the records. That is not the end of the matter, however, as section 36(1) is subject to the other provisions of section 36.

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Section 36(3) provides that section 36(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must carry out that balancing exercise, by weighing the competing interests at play in the particular circumstances of a request, and then explain the basis on which it has decided where the balance of the public interest lies.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that, in performing any function under the FOI Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies, to promote adherence to the principle of transparency in Government and public affairs, the need to strengthen the accountability of FOI bodies, and the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies.

However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. It also found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that -�-� the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.-�

The Supreme Court went on to state that the public interest test involves a -�weighing of the respective private and public interests in the analysis of the records at issue-�. In this regard, it did not disturb the guidance the Court had previously given in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26, in which it noted that a public interest should be distinguished from a private interest.

RTÉ, referring to the Enet judgment referenced above, said that it did not see any reason to reverse the mandatory exemption at section 36 and allow for, what is in effect, the publication to the world at large of information that is commercially sensitive. It said that it saw no valid argument that the release of the records would advance the openness and transparency of a public body. Furthermore, RTÉ said that the purpose of the FOI Act is not to expose details of private entities or individuals.

As noted previously, I am required to disregard the applicant-�s reasons for making the FOI request except insofar as it can be construed as a public interest. The applicant said that he never received statement of account, bill of costs or receipts from his solicitors and that he wished to see what he described as missing communications between RTÉ and his solicitors. He referred to the final fee amount paid by RTÉ to his solicitors as -�extraordinarily sizeable-� and wished to understand how it had been reached. While I appreciate that the applicant is dissatisfied with his solicitors, I am bound to treat this as a private, rather than a public, interest.

In terms of the public interest in transparency and accountability around the use of public funds, the actual settlement amount paid by RTÉ and the total legal costs paid by RTÉ to the applicant-�s solicitors have been released. It seems to me that, as a statutory body in receipt of substantial public funding, there is a public interest in RTÉ being able to work with its legal costs accountants and negotiate legal fees in order to reduce its costs. I have not identified a specific public interest, from the arguments advanced or from an analysis of the records, which is sufficiently strong as to outweigh the interests of commercial sensitivity. 

I find therefore that records 47 -� 55 and part of 41 are exempt from release under section 36(1)(b) of the FOI Act. Having found that section 36(1)(b) applies, I do not need to consider the applicability of section 30(1)(c), 31(1)(a) or 37(1) to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ-�s decision to refuse access to the records at issue under section 36(1) of the 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