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Case Number: 170306

Whether RTÉ was justified in refusing access to correspondence between an RTÉ and NAMA 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)

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 11 April 2017, the applicant made an FOI request to RTÉ for the following records:

"All correspondence, including email(s), between RTÉ and the National Asset Management Agency (NAMA), between June 2015 and March 2017."

On 29 May 2017, RTÉ refused access to the records requested on the basis that they fall outside the scope of the Act, having regard to the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations 2000 (S.I. No. 115 of 2000). On 1 June 2017, the applicant requested an internal review of RTÉ's decision. On 13 June 2017, RTÉ affirmed its original decision. On 16 June 2017, the applicant applied to this Office for a review of RTÉ's decision.

During the course of the review, the parties were invited to make submissions to this Office and RTÉ provided submissions in support of its decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between RTÉ and the applicant, to correspondence between RTÉ and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of the Review

RTÉ identified six records which fall within the scope of the applicant's request. The records were created as part of an FOI request from a journalist to NAMA. The records include the original FOI request from the journalist, NAMA's original decision, the internal review request from the journalist, NAMA's internal review decision and related correspondence. The scope of this review is confined to whether RTÉ has justified its decision to refuse access to these six records on the basis that they fall outside the scope of the FOI Act having regard to S.I. 115 of 2000.

Preliminary Matters

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.

Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

FOI Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. No 115 of 2000)
RTÉ was brought under FOI in 2000, further to Statutory Instrument No. 115 of 2000 (the Regulations). Those Regulations, which continue in force further to section 54(2) and Schedule 5 of the FOI Act 2014, specify the extent to which RTÉ is subject to FOI. Schedule 2 of the Regulations provides that the following functions fall within the remit of the Act:

1. Management.
2. Administration.
3. Finance.
4. Commercial.
5. Communications.
6. Making of contracts of or for services with any person, company or other body.

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 of the Regulations. Amongst the excluded matters are:

"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.

3. The editing and storing of any material recorded by any means, whether written, aural, visual or otherwise, for the purpose of programme origination, whether or not such programme is produced or broadcast.

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..."

RTÉ's submissions
According to RTÉ, the objective of the journalist's information gathering exercise was to produce journalistic content, which depending on the content produced, might then form part of a programme to be broadcast as part of the 'RTÉ Investigates' programme strand. It states that the project is on hold as its investigative resources have been reallocated to other projects which are currently being afforded higher priority. According to RTÉ, its Investigations Unit has not conducted any further journalistic activities on this issue beyond the inquiries made in 2016. However, it states that depending on editorial directions, the team may return to this issue in the future and the material is being stored for the purposes of future programme origination. Finally, RTÉ argues that the very fact of the FOI request having being made to NAMA, reveals RTÉ's editorial decision to pursue this line of inquiry with a view to programme origination. RTÉ argues, therefore, that records one to six are directly relevant to its programme making function and should be withheld from release on the basis of Schedule 3 paragraphs 1-4 of the Regulations.

The application of the FOI Act to records held by RTÉ was considered by the High Court in RTÉ v. the Information Commissioner [2014] IEHC 113. That case involved records of data collected on the amount of broadcast time allocated to political parties during a general election campaign. In his decision, Ó Caoimh J. stated the following in respect of the application of the 2000 Regulations:

"It must be said however, that if the role in question was one involving the functions specified in Schedule 3 that they must be deemed to be excluded from the term management in relation to the functions contained in Schedule 2. 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 in 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 the schedule. If the functions in question can be broadly described as management functions but they entail functions in Schedule 3 then they do not fall within the term of the management functions specified in Schedule 2.

... I believe that it is clear from the reading of the schedule that the matters sought to be excluded from Schedule 2 were programme related functions. "

Ó Caoimh J. held that the Commissioner had erred in law in his construction of the Regulations when applied to the facts in that case.
I have examined records one to six closely and I am satisfied that they concern programme related functions. The FOI request was made by a journalist with the RTÉ Investigations Unit. It seems to me, that the purpose of the request was to investigate an issue which the Investigations Unit deemed to be worthy of further inquiry. I accept that the request was made for journalistic or programme content purposes. The fact that the information gathered did not ultimately result in the production of a specific programme does not prevent RTÉ from relying on Schedule 3 paragraph 1 of the Regulations. I find that records one to six fall outside the scope of the FOI Act having regard to Schedule 3 paragraph 1 of the Regulations. In light of this finding, it is not necessary to consider whether Schedule 3 paragraphs two, three and four also apply to the records.

Decision

I affirm RTÉ's decision to refuse access to records one to six on the basis they are excluded from the FOI Act, having regard to Schedule 3 paragraph 1 of S.I. No. 115 of 2000.

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.

Elizabeth Dolan
Senior Investigator