Decision
Mr Z and RTÉ
From Office of the Information Commissioner (OIC)
Case number: OIC-150938-V1N8R9
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URL: http://www.bailii.org/ie/cases/IEIC/2024/150938.html
Cite as: [2024] IEIC 150938
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Whether RTÉ was justified, under section 15(1)(a) of the FOI Act, in refusing information about the number of times a specific advertisement was shown, on the ground that it does not hold a record containing the information sought
8 November 2024
On 20 November 2023, the applicant made a request for the number of times an advertisement for a named brand was shown on RTÉ One and RTÉ Two between August 2022 and June 2023. The applicant requested this information be broken down by month and by TV channel. The applicant provided a photograph of the advert he was referring to.
On 18 December 2023, RTÉ refused the applicant-s request under section 15(1)(a) of the FOI Act. RTÉ said it is not possible to get a report based on a -screen grab-/ photograph of an advertisement as its reporting systems do not allow for a search of same. It said there could be multiple versions of an ad containing the images provided by the applicant and that in order to run a proper search it would need to be provided with the entire ad, the date(s) it ran and the channel it ran on in order to get the detail being requested.
On 3 January 2024, the applicant requested an internal review of RTÉ-s decision. The applicant provided a further two photos/screen grabs of the advert and provided a written description of the ad he was referring to. He claimed RTÉ should be able to identify the advert as it was shown many times. On 9 February 2024, RTÉ affirmed its original decision. On 27 July 2024, the applicant applied to this Office for a review of RTÉ-s decision. He said he finds it hard to conceive how this extremely successful TV advertisement could not be recalled/identified by RTÉ.
During the course of this review this, RTÉ wrote to the applicant and provided him with the total number of adverts that were transmitted on both RTÉ 1 and RTÉ 2 for the particular brand during the relevant period. It said a record does not exist which states how many times the specific advert mentioned by the applicant appeared on RTÉ television. RTÉ said there is no record that has that information, nor can one be created. RTÉ subsequently released a copy of the spreadsheet it used to compile the total number it provided to the applicant. RTÉ said that it does not consider the spreadsheet to be within the scope of the applicant-s request. It said, it remains the case that no record exists, nor can one be created, in relation to one specific indeterminate advertisement for the particular brand.
Details of RTÉ-s submissions to this Office were provided to the applicant during the course of this review. In response, the applicant said he is disappointed that RTÉ was unable to identify the advertisement.
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 outline above and to submissions made by the applicant and by RTÉ. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether RTÉ was justified, under section 15(1)(a) of the FOI Act, in its decision to refuse the information sought about the number of times the advert contained in the photographs provided by the applicant was shown on RTÉ One and RTÉ Two between August 2022 and June 2023, on the ground that it does not have a record containing the information sought and cannot create such a record from its systems pursuant to section 17(4) of the Act.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -search- cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
In its submissions to this Office, RTÉ stated that it does not hold records relating to the exact number of times specific adverts are shown on its channels. It only holds records of the name of the brand that is being advertised, the channels its adverts were shown on, the scheduled date and time of the brand-s adverts being shown, the actual time they were shown, and the duration of the adverts. RTÉ stated that brands may have multiple versions of the same advert that are shown at different times. It does not hold a record of when individual, specific adverts for a brand are shown.
By way of example, RTÉ said that in the case of a person complaining about a specific advert, an advert may be identified if the complainant can specifically identify the exact time the advert was broadcast. RTÉ said that the onus is on the complainant to identify the exact advert and when it was shown. However, in this case, RTÉ said the applicant was referring to an advert that was shown multiple times and in different versions over eleven months and so it could not identify the specific advert.
RTÉ stated that it is not possible to carry out searches for specific adverts based on images or keywords alone. It said that advertising campaigns may have multiple versions of the same advert and so a -still- from an advert is not enough to pick out a single version from a brand-s campaign. RTÉ said the images that the applicant supplied may feature in more than one version of the advert, e.g. in different durations of the advert. However, even if the advert could be identified, RTÉ stated that it does not hold records relating to singular, distinct adverts; it only records the general brand name being advertised.
During the course of this review, RTÉ was able to create a spreadsheet with the number of times all adverts for the particular brand were shown on RTÉ One and Two between August 2022 and June 2023. While it could not narrow it down to the specific advert, RTÉ said this was the best it could do in terms of providing information on the number of times adverts for the particular brand was shown. In an effort to assist the applicant, RTÉ wrote to the applicant on 26 September 2024 and provided him with the total number of adverts for the brand during the relevant period. Subsequently, on 24 October 2024 RTÉ released a copy of the spreadsheet it used to compile the total number it provided to the applicant. In its letter to the applicant, RTÉ said the spreadsheet does not within the scope of his request as it cannot answer the question posed in his original request. RTÉ redacted the scheduled date, scheduled time and transmitted time from the spreadsheet it provided to the applicant as it considers this information is commercially sensitive. As this specific information was not sought by the applicant in his original request, I am satisfied it does to fall within the scope of his request. Therefore, it is not necessary for me to consider whether RTÉ was justified in redacting this information from the spreadsheet.
In his application to our Office, the applicant said the specific advert he was referring to should have been identifiable from photographs of a screen showing the advert and his description of the advert he sent to RTÉ. One of the photographs appeared to show a YouTube video of the advert with its title.
After RTÉ released the total number of times all adverts for the brand were shown, the applicant was given the opportunity to make further submissions. He responded by questioning which departments within RTÉ were unable to identify the advert he was referring to and he stated that it was difficult to understand why RTÉ could not identify the advert. The applicant said he made a similar FOI request several years ago seeking the number of times another advert was shown and he said that a number was provided to him by RTÉ then.
The Investigating Officer put the applicant-s submissions to RTÉ. In response, RTÉ said its Commercial Division was the only relevant unit in the organisation consulted in relation to the applicant-s request.
In regard to the applicant-s previous FOI request, RTÉ said that the circumstances of the applicant-s 2018 request were significantly different to his current request. It stated that, in 2018, the applicant provided phrases used in the adverts and the duration of the adverts. RTÉ said his 2018 request was made much closer to the time that the adverts were aired and specified a timeframe of just three months. This meant that, unlike the current request, RTÉ-s Commercial Division was able to recall and identify the adverts. RTÉ stated that the Head of the Commercial Division said that, in processing the applicant-s 2018 request, it was most likely that the relevant staff member was able to identify the adverts simply because she knew them. The current FOI request covers an eleven-month time period and was submitted six months after the end of the specified period. In both requests, images of the adverts were provided by the applicant, but RTÉ said that, on both occasions, this did not contribute towards identifying the adverts. RTÉ also stated that, even with the more specific information the applicant provided in his 2018 request, the answer he was provided with then was only an approximate estimate from the Commercial Division.
The Investigating Officer asked RTÉ if the title included in the image provided by the applicant could help to identify the advert he was referring to. RTÉ responded by saying that this was still not enough to pick out the specific advert. It stated that the Commercial Division identified a YouTube video of an advert with this title, but that it was sixty seconds long. RTÉ said that this is an unusually long duration for an advertisement. It pointed to the fact that, as shown on the spreadsheet record, all the adverts for the brand in the specified timeframe of the request were each thirty seconds long. Therefore, RTÉ said that title of the video in the image provided by the applicant could refer to multiple, edited down versions of this advert. RTÉ suggested that the images of -stills- from the advert the applicant was referring to could come from multiple edits of the sixty-second version, and so this label does not, in RTÉ-s view, contribute to the identification of the one specific advert referred to by the applicant. RTÉ said the Commercial Division also confirmed that it did not find anything under the title in its database.
RTÉ offered the applicant the opportunity to provide further information about the advert from his current request, such as the time/date of transmission, if he is in a position to do so, in order to narrow down the number from the total number it provided to him. However, it reiterated that it can only provide a -best guess- rather than a definitive answer.
It is important to note that under section 12(1)(b) of the FOI Act, a request for access to records must contain sufficient particulars in relation to the information sought to allow the relevant records to be identified by the taking of reasonable steps.
As noted above, in his application to this Office the applicant said he finds it hard to conceive how this extremely successful TV advertisement could not be recalled/identified by RTÉ. The question I must consider is whether RTÉ has a record containing the answer to the question asked by the applicant, i.e. the number of times the particular ad was shown on each channel during the relevant period. If no such record exists, that is the end of the matter. Consequently, whether certain staff of RTÉ can recall the particular ad is immaterial if no relevant record exists.
Having considered the submissions from the applicant and from RTÉ in this case, I am satisfied that a record of the number of times the specific advert was shown on RTÉ One and Two does not exist or cannot be determined from the information available in this case. It seems to me that RTÉ has attempted to answer the applicant-s request to the best of its ability by providing the total number of all adverts for the brand shown in the specified period.
As noted above, this review is solely concerned with whether RTÉ has a record, or can reasonable create a record pursuant the provisions of section 17(4) of the Act, that would provide an answer to the question posed by the applicant in his original request. Having regard to the submissions, and in the absence of any evidence to the contrary, I am satisfied that RTÉ has taken all reasonable steps to locate a record of the number of times the specific advert was shown on RTÉ1 and RTÉ 2. I am also satisfied that RTÉ has adequately explained why it holds no such record and why it is unable to determine the number from its systems. Accordingly, I find that RTÉ was justified in refusing the applicant-s request under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ-s decision to refuse the applicant-s request under section 15(1)(a).
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.
Richard Crowley
Investigator