Decision
Mr. X and Raidió Teilifís Éireann
From Office of the Information Commissioner (OIC)
Case number: OIC-145266-Z2Q5T7
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Cite as: [2024] IEIC 145266
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Whether RTÉ was justified in refusing access to records relating to the costs that it incurred in sending a crew to cover the 2023 FIFA Women's World Cup in Australia and New Zealand
8 October 2024
In a request dated 31 July 2023, the applicant sought the itemised (travel, accommodation, meals, per diem, etc.) total cost of RTE having a crew to cover the FIFA Women's World Cup in Australia and New Zealand, and details of how many were in the crew, what class they travelled in and what hotels they stayed in. He also sought details of all expenses claimed by the crew and the total minutes they transmitted to air from Australia or New Zealand.
In a decision dated 29 August 2023, RTÉ refused the request on the basis that the information sought is programme related and that the FOI Act does not apply to programme related records, pursuant to the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2.) Regulations 2000 ("the 2000 Regulations"). On 15 September 2023, the applicant sought an internal review of that decision following which RTÉ affirmed its refusal of the request. On 11 January 2024, the applicant applied to this Office for a review of RTÉ's decision.
During the course of the review, the Investigator sought further information from RTÉ in relation to the total minutes broadcast to air. RTÉ subsequently made further submissions, the details of which were provided to the applicant. In response, the applicant indicated that he accepted RTÉ's position and, accordingly, this aspect of the FOI request can be removed from the scope of this review.
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 to the applicant's comments in his application for review and his subsequent submissions. I have decided to conclude this review by way of a formal, binding decision.
The applicant sought information concerning the cost to RTÉ of sending a crew to the sporting event in question. While the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. As such, requests for information can generally be inferred to be a request for a record containing the information or answer sought. It is also relevant to note that the FOI Act defines a record as including part of a record.
When this Office accepted the review, we asked RTÉ to provide us with copies of the relevant subject records for the purpose of conducting the review. In response, it provided two records, comprising a powerpoint presentation which contains some of the information sought, and a spreadsheet. RTÉ said that the spreadsheet contains more of the information sought but the version forwarded to this Office does not contain any such information. In relation to the request for information relating to expenses, it said it would not be possible to determine exact details without going through each individual expense claim.
Having regard to its response, it is clear that RTÉ does not dispute that it holds records that contain the information sought. However, its position is that the FOI Act does not apply to that information. Moreover, it argued that even if the Act applies to the records containing details of expenses, it would refuse the request under section 15(1)(c), which provides for the refusal of a request where granting the request would cause a substantial and unreasonable interference with work of the FOI body concerned. I will address RTÉ's arguments in respect of section 15(1)(c) later in this decision.
Having regard to RTÉ's position on the request, this review is concerned solely with the question of whether it was justified in its decision to refuse the request on the ground that the FOI Act does not apply to the information sought, pursuant to the 2000 Regulations.
The 2000 Regulations provide that the FOI Act applies to RTÉ only in respect of certain
functions set out in Schedule 2, namely:
- 1. Management,
- 2. Administration,
- 3. Finance,
- 4. Commercial,
- 5. Communications, and
- 6. Making of contracts of or for service with any person, company or other body.
However, the Regulations also provide that the functions specified in Schedule 2 shall be deemed not to include any of the matters specified in Schedule 3. Schedule 3.4 provides for the exclusion of the following:
"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".
On the applicability of the 2000 Regulations to the information sought, RTÉ said that the explanatory note accompanying the 2000 Regulations provides that the FOI Act applies only to "the non-programme related functions" of RTÉ. It said that O'Caoimh J. had highlighted this in the case ofRTÉ v The Information Commissioner [2004] IEHC 113, in which the Court stated that the 2000 Regulations excluded from the FOI Act matters which were "programme related functions". RTÉ went on to outline that the High Court had stated that the Schedule 2 functions in the 2000 Regulations must be interpreted narrowly, and the Schedule 3 functions given a broad interpretation. It said the High Court stated that if a function could be perceived as being a Schedule 2 matter (e.g. management), but involved a Schedule 3 function, then it is not subject to the FOI Act.
RTÉ noted that the BBC in the UK has a similar 'programme making exemption'. It said the UK FOI Act only applies to information held by the BBC "for purposes other than those of journalism, art or literature'. It referred to a UK Supreme Court case, Sugar v BBC, wherein the judges cited the O'Caoimh judgment and stated that 'there is a close parallel between the effect of the express provisions made in Ireland and the meaning to be attributed to the bare words of the designation in our Act.' It said the High Court in the U.K. [EWHC 2348] ruled that the costs of making programmes by the BBC was not subject to the UK FOI Act.
RTÉ also sought to clarify the exact meaning of an "editorial decision". It noted that Article 2 of the European Media Freedom Act (EMFA) Regulation (EU) 2024/1083 (an EU Regulation that came into force on 7 May 2024 with the aim of protecting media pluralism and independence in the EU, and which will apply in full from August 2025) defines an "editorial decision" as "a decision taken on a regular basis for the purpose of exercising editorial responsibility and linked to the day-to-day operation of a media service provider".
The essence of RTÉ's argument is that the decision to send reporters and crew to Australia and New Zealand to cover the Republic of Ireland's women's soccer team was an editorial decision. It said the process of making editorial decisions included decisions on spending /
budgeting and programme planning relating to flights and accommodation and that decisions about flights and accommodation were taken on editorial grounds only, i.e. they were editorial decisions directly relating to programme planning and broadcasting.
In its submissions RTÉ said that the numbers who travelled and the costs incurred arose from a function specified in Schedule 3.4. It said that process included discussion on costs and budget for the event. It said that then dictated how many could be sent, who they were, their designated roles etc. It said that this is all part of the process of making the editorial decision, specifically regarding programme planning. It said the flights and hotels were chosen also as part of the process of programme planning and were dictated by when the personnel were needed to provide coverage and, regarding accommodation, principally by how close the hotels were to where the Irish team were staying or training and the match stadiums.
On the matter of the particular information at issue, RTÉ said the staff did not all travel together and travelled over several days depending on when they were required for programming, i.e. when the editors wanted to start coverage on its programmes and social media channels and who needed to be 'on the ground', and when, to deliver that. It said the flights chosen and therefore the costs incurred were obviously part of the process of programme planning. On the matter of the hotels, RTÉ said that as part of the planning process, the 'away' producer had several meetings with the personnel charged with organising the logistics in RTÉ. It said the 'away' producer has stated that the absolute priorities in choosing the hotels were proximity to the Irish team hotel and training grounds. It said other issues which played a role included proximity to the stadiums for the matches, the quality of Wi-Fi in the hotels and access to the airports. It said a list of hotels in the host cities was drawn up which fitted the criteria and from that list the hotels were chosen by the 'away' producer before departure. It said this was clearly part of the process of programme planning. It said it was an editorial decision where the RTÉ team stayed and it was based solely on access for programme making purposes. It said the fact that the 'away' producer made the decision clearly shows the hotels were chosen on the basis of editorial concerns.
On the matter of expenses, RTÉ said staff received a per diem to cover expenses such as meals. It said, however, that there may have been additional expenses incurred. It argued that expenses incurred as part of the programme making process are not subject to the FOI Act arising from Schedule 3. It said, however, that even if they were subject to the legislation, it would be a very difficult task to determine the figures with complete accuracy. It said it would involve checking through the expenses of the individuals over several months as they may not submit expenses on their immediate return to Ireland. It said an electronic search would not necessarily result in the provision of an itemised list. It said that would involve getting boxes containing many paper receipts back from an offsite storage facility, going through them to find the relevant person, and going through their individual envelopes to look for receipts relating to their work on this event. It said that would take many hours of work and be too voluminous to process even if it were subject to the Act.
RTÉ further argued that Schedule 3.5 of the 2000 Regulations is also engaged. Schedule 3.5 provides for the exclusion of the following:
"The process of post-transmission internal review and analysis of any programme or schedule of programmes broadcast."
RTÉ said that after the return of the group to Ireland following the exit of the soccer team there was a process to review output, costs, technology etc. and see what, if anything, could be improved one the next time such an event occurred. It said this is both routine and important after these events.
In the course of this review, RTÉ provided further submissions as to the basis on which it considered that the 2000 Regulations applied specifically to records relating to the expenses incurred by its team. It stated that it is not the case that the work of RTÉ journalists is the same as the work of other RTÉ personnel. It argued that the work of staff who are not engaged in programme making, (e.g. staff engaged in commercial, regulatory and financial work, etc.) are subject to FOI, but the work of journalists and programme makers is protected by national and international law. It said that work includes travel and therefore expenses which must legally be paid. As such, RTÉ argued that it cannot be considered a single entity for the purposes of FOI. By way of example, RTÉ argued that the notes of an employee working on a response to an FOI request would be subject to FOI, while notes from the same employee's work as a journalist would not. Noting that the release of information under FOI is generally considered to equate to release to the world at large (because the FOI Act places no restrictions on the use to which information released under the legislation may subsequently be put), RTÉ stated that the release of journalists' expenses would set a precedent that would obviously cover all journalists which, in the case of (for example) the "RTÉ Investigates" team, would include undercover reporters. RTÉ argued that an expenses claim could show a reporter meeting a relevant party (for example a potential whistle-blower) at a specific date, time and place date. RTÉ argued that, armed with that level of detail, it would be much easier to identify that person as a whistle-blower or investigative reporter. RTÉ argued that if the team travelled overseas or hired hotel rooms for interviews or observations, those expenses too would be releasable to the world long before an investigation was broadcast. RTÉ argued that the publication of that level of detail about the work of journalists, including potentially exposing sources, appeared contrary to the guarantee of a free press. It argued that the release under FOI of information about parties whom RTÉ reporters had met in the course of their work, and when and where they had met, would be inconsistent with the national and international protections afforded to the work of journalists. RTÉ stated that this was not a purely hypothetical scenario, and provided a real-world example of a request from an individual for information about an RTÉ investigation about that person, which was currently the subject of a review by a separate regulatory body. RTÉ stated that it was important to note that it is not just that records showing an editorial decision which are covered by the 2000 Regulations, but rather records relating to the entire process.
In sum, RTÉ argued that the records sought by the applicant regarding a) the number of staff who were sent to the tournament; b) the flights they took and resultant costs; c) the hotels they stayed in and resultant costs; d) and the per diem or any expenses incurred, were programme-related as they were created in the context of the provision of content for programmes in news and sport, on linear or online platforms. According to RTÉ, the only reason the costs were incurred was to facilitate journalism and programme making. It said the journalism subsequently created appeared on all its news and current affairs programmes as well as its sports programmes, including those created around the matches. On this basis, RTÉ argued the relevant records were creating for functions that fell within the scope of Schedule 3 of the 2000 Regulations, and as such fell outside the ambit of the FOI Act.
Before I consider RTÉ's arguments, it is worth recalling the nature of the information sought in this case. In essence, the applicant is seeking details of the cost to RTÉ of sending a crew to cover a sporting event. The 2000 Regulations provide that RTÉ is subject to the provisions of the FOI Act in respect of the finance function, with the exclusion of certain matter specified in Schedule 3. While I fully accept, pursuant to the judgment of O'Caoimh J. inRTÉ v The Information Commissioner , that the Schedule 2 functions in the 2000 Regulations must be interpreted narrowly and the Schedule 3 functions given a broad interpretation, there can be no doubt, in my view, that the incurring, recording, and payment of costs by RTÉ in respect of the procurement of goods and/or services comprises the exercise by RTÉ of a finance function. This is precisely the type of information the applicant has sought in this case. Accordingly, the question I must consider is whether the information sought concerns any of the matters specified in Schedules 3.4. and/or 3.5. If it does, then the information is deemed not to be included in the functions set out in Schedule 2 and the FOI Act does not apply to such information. If it does not, then the Act applies to the information and a right of access exists unless the information sought is otherwise exempt pursuant to one or more of the exemption provisions in the Act.
The nature of the information that was at issue inRTÉ v The Information Commissioner is an important factor in considering the wider applicability of the High Court's findings to the particular circumstances of this case. The information in question comprised data that was used to inform RTÉ's editorial decision making on broadcasting during an election. Specifically, it was data collected on the amount of broadcast time allocated to each political party during the general election campaign of 2002. Under section 18(1) of the Broadcasting Authority Act 1960 as amended (the 1960 Act), RTÉ is required to maintain impartiality in broadcasting of certain matters. In his decision, the then-Commissioner drew a distinction between the process of making editorial decisions and the data or information on which such a process relies. He found that Schedule 3.4. did not serve to exclude the information from Schedule 2.
The Court found that it was clear from the reading of Schedule 3 that the matters sought to be excluded from Schedule 2 were programme related functions. It found that compliance with section 18 of the 1960 Act necessarily involves the process of making editorial decisions concerning programme contents and must include programme planning and final pre-transmission editorial decisions. It found that in so far as the information was gathered for RTÉ, this was a gathering of data for the purpose of achieving the impartiality required by the 1960 Act and that this, of itself, involves programme content purposes in so far as the impartiality in question was sought to be achieved. It further found that the process engaged in was one which can be stated to have included internal review and analysis of programmes or schedule of programmes. He found that the Commissioner erred in law in his construction of the Regulations when applied to the facts of the case (my emphasis).
The information sought in this case is of a type that is wholly distinguishable from the type of information that was considered by the High Court inRTÉ v The Information Commissioner . As I have outlined above, the information in this case comprises information on the incurring and payment of costs by RTÉ in respect of the procurement of goods and/or services. It is not, in my view, information that concerns the editorial decision making process concerning programme or programme schedule content. It is simply financial information relating to costs incurred by RTÉ. It seems to me that if I was to accept RTÉ's arguments that the exclusion in Schedule 3.4 should be given such a broad interpretation as to incorporate such financial information, then it would be very difficult to identify any information relating to the finance function that would fall to be considered as information concerning RTÉ's finance functions that is not excluded pursuant to Schedule 3.4. Moreover, given the breadth of functions included in Schedule 2, it seems to me that such broad interpretations of the exclusions in Schedule 3 would effectively place the vast majority, if not all, of RTÉ's operations beyond the reach of the FOI Act. I am not at all satisfied that this was the intent of the Minister when making the relevant regulations.
I would add that while RTÉ made detailed submissions on how decisions taken in respect of matters such as the flights and hotels selected were editorial decisions concerning programme planning, the information sought does not concern such matters. Rather, it simply concerns costs incurred as a result of the procurement of the services in question. Moreover, while I have noted RTÉ's comments on the extent of the exclusion available to the BBC under UK FOI legislation and the views of the Courts in the UK as to the close parallels between the two regimes, I must interpret the 2000 Regulations based on the language contained in those Regulations. Similarly, the definition of "editorial decision" as set out in the relevant EU Regulation referenced by RTÉ does not mean that the information at issue in this case must be deemed to concern the process of making editorial decisions concerning programme or programme schedule content.
In sum, I am satisfied that details of the travel, accommodation, per diem, and expense costs sought is not matter concerning the process of making editorial decisions concerning programme or programme schedule content. In the particular circumstances of this case, I am also of the view that details of how many were in the crew that travelled, the class of travel, and what hotels the crew stayed in is not matter concerning the process of making editorial decisions concerning programme or programme schedule content. The details of how many were in the crew that travelled and the class of travel is inextricably linked to the financial information sought concerning the cost of procuring flights, while the details of the hotels they stayed in is simply information relating to the services procured.
I would add that much of RTÉ's additional submissions in respect of expenses appears to be based on a concern that any decision directing the release of expenses would set a precedent for the release of all journalist expenses in the future. This is not the case. Each case is treated on its merits and based on the particular circumstances arising which, in this case, includes the nature of the expenses sought. Moreover, the fact that certain expense costs may be deemed to be subject to the FOI Act does not, of itself, mean that such information automatically falls to be released. The FOI Act contains many exemptions that serve to ensure that the release of records under the Act does not cause certain specified harms.
Nevertheless, it seems to me that the wording of this aspect of the request, namely "details of all expenses claimed by the crew" is potentially quite broad and it could be argued that the request extends to specific details of the nature of each and every expense, as well as the amount claimed. However, even if this is the case, I do not accept that Schedule 3.4. serves to exclude all details of expenses claimed. The disclosure of actual expense amounts claimed do not, in my view, comprise matter captured by the exclusion. As with details of flight and accommodation costs, I am satisfied that such information is simply financial information concerning expenditure incurred.
It is relevant to note that under section 12(2) of the Act, a request made under the Act must contain sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps. However, it is also relevant to note that under section 12(6), FOI bodies are required to assist, or to offer to assist, persons in making FOI requests. In my view, the applicant has not identified, with sufficient specificity, the precise nature of the information sought in this part of his request. I also note that RTÉ did not offer to assist the applicant in refining that part of his request although I presume it would argue that it was not required to do so in circumstances where it considered that the entirety of the information sought was excluded from the scope of the FOI Act. Regardless, for the reasons I will explain further below, I do not consider it necessary to consider in detail precisely what information is captured by the relevant part of the request and whether any part of such information is excluded pursuant to Schedule 3.4. It is sufficient for me to find, at this stage, that at least some of the information sought, namely the actual expense amounts claimed, is not captured by Schedule 3.4 and is not, therefore, excluded from the scope of the FOI Act.
Schedule 3.5
On the matter of the applicability of Schedule 3.5, RTÉ's position is that a review was carried out after the return of the group to review output, costs, technology etc. and to see what, if anything, could be improved for the future. Schedule 3.5. excludes from the scope of the matters outlined in Schedule 2 matter concerning the process of post-transmission internal review and analysis of any programme or schedule of programmes broadcast. For the exclusion provision to apply, the information must concern the internal review and analysis process and that internal review and analysis must be of any programme or schedule of programmes broadcast. The exclusion serves to exclude information on the review process itself.
The information at issue in this case does not concern any such analysis or review. Rather, it concerns the cost to RTÉ for the procurement of certain services. Notwithstanding the fact that the exclusion provision is to be interpreted broadly, I do not accept that it is so broad as to exclude records of money actually spent by RTÉ, even where such information may subsequently be used to feed into part of a post-transmission internal review and analysis of any programme or schedule of programmes broadcast. If this were the case, it would cast the net incredibly wide in my view as all matters relating to a programme beyond those covered by the other parts of Schedule 3, would potentially be caught by Schedule 3.5. I am satisfied that the information at issue is not a matter concerning the process of post-transmission internal review and analysis of any programme or schedule of programmes broadcast. I find, therefore, that Schedule 3.5 does not serve to exclude the information sought from Schedule 2.
For the reasons I have outlined above, I find that RTÉ was not justified in its decision to refuse the applicant's request on the ground that that the FOI Act does not apply to the information sought, pursuant to the 2000 Regulations. However, I do not consider it appropriate to simply direct the release of all of the information sought, particularly information relating to expenses claimed and the overall total cost, for two reasons. First, as I have outlined above, the relevant part of the request does not sufficiently identify the specific nature of the information sought. Secondly, in its submissions, RTÉ argued that even if information relating to expenses claimed was to come within the scope of the request, section 15(1)(c) would apply. That provision allows 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.
I have not considered RTÉ's detailed arguments for concluding that section 15(1)(c) would apply in this case. This is because under section 15(4), an FOI body cannot refuse a request under that section unless it has first assisted, or offered to assist, the requester concerned in an endeavour so as to amend the request for re-submission such that it no longer falls within those paragraphs. Clearly, RTÉ made no such offer in this case, given its position that the Act does not apply to the information sought. As such, it would not be open to me to find that RTÉ was entitled to rely on section 15(1)(c) in this case. However, it would not be appropriate for me to simply direct the release of any information without fully considering RTÉ's contentions regarding the substantial and unreasonable interference with its work. It also follows that I am simply not in a position to direct RTÉ to provide details of the overall cost of sending a crew to the sporting evet in circumstances where it has not yet considered that part of the request relating to expenses claimed.
In the circumstances, it seems to me that the most appropriate course of action to take is to remit those aspects of the request back to RTÉ for consideration afresh. I would strongly suggest that before it embarks on a fresh decision making process, it should engage with the applicant to determine the precise nature of the information sought. Moreover, if, having done so, it remains of the view that the request as framed falls to be refused under section 15(1)(c), it must first comply with the provisions of section 15(4) before refusing the request on that basis.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of RTÉ. I find that it was not justified in its decision to refuse the applicant's request on the ground that that the FOI Act does not apply to the information sought, pursuant to the 2000 Regulations. I direct the release of details of travel, accommodation and per diem costs, details of how many were in the crew and what hotels they stayed in. I direct RTÉ to consider afresh the applicant request for details of all expenses claimed by the crew and the overall total cost of RTÉ sending a crew to cover the FIFA Women's World Cup.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator