Whether RTÉ was justified in redacting certain information from a Memorandum of Understanding between RTÉ and Galway 2020 under sections 30 and 36 of the FOI Act

16 August 2019

Background

On 26 April 2018, the applicant sought access to records relating to RTÉ's partnership with Galway 2020 European Capital of Culture created between 1 January 2017 and 30 March 2018.

On 22 June 2018, RTÉ decided to part-grant the request. Among other things, it refused access to a Memorandum of Understanding (MoU) agreed between RTÉ and Galway 2020 under section 36(1)(c) of the FOI Act and it redacted information from a number of the remaining records, (primarily emails) under section 37(1), which is concerned with the protection of personal information relating to third parties. It also stated that one email was being withheld in its entirety as it contained personal information.

The applicant sought an internal review of RTÉ’s decision on 28 June 2018.  As RTÉ failed to issue an internal review decision within the timeframe specified in the Act the applicant sought a review by this Office based on RTÉ's failure to process his request for internal review. On 26 September 2018 RTÉ notified the applicant of its effective position on the matter. It granted partial access to the MoU, citing sections 30 and 36 of the Act for redacting certain information. It also stated that the email that was redacted in its entirety was not relevant to the request and contained personal information.

On 5 October 2018 the applicant informed this office that he was not satisfied with RTÉ's effective decision and asked for the review to proceed. He stated in his application for review that he was not happy with RTÉ’s decision to redact the MoU or with the decision to redact an email in its entirety.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to RTÉ's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and RTÉ on the matter.  I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by RTÉ in the schedule of records it prepared when processing the request.

Scope of Review

During the course of the review, Ms Connery of this Office sought to clarify the precise email that the applicant understood to have been redacted in its entirety as it was not clear from the schedule of records or from the applicant’s correspondence with this Office.

Having examined the relevant records, I have identified two records comprising email strings where one of the emails within the string appears to have been redacted in its entirety. Record 15 contains an internal email dated 30 May 2018 that was redacted in its entirety. As this record was created after the applicant made his request to RTÉ, I am satisfied that it falls outside the scope of both his request and this review.

Record 25 contains an internal email dated 25 April 2017 which issued in response to a request for a meeting and which was redacted in its entirety. In essence, the email in question comprises an exchange of pleasantries. As such it only peripherally relates to the request and in any event, I am satisfied that it comprises personal information relating to the author of the email. I do not propose to consider this email any further.

Accordingly, this review is concerned solely with whether RTÉ was justified in redacting certain information from the MoU under sections 30 and 36 of the FOI Act.

Analysis and Findings

According to its summary, the MoU in question outlines RTÉ’s interpretation of its media partnership with Galway 2020 and the proposed top line deliverables and expectations of RTÉ. The information redacted from the record comprises the details of those potential deliverables of what it expects from the partnership. RTÉ argued that sections 30(1)(c), 36(1)(b), and 36(1)(c) of the FOI Act apply to the information.

Section 36(1)(b)

Section 36(1) provides for the refusal of a request if the record sought 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 subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The test to be applied is whether the decision maker's expectation of the identified harm arising is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

There is a degree of overlap in the arguments made by RTÉ in its submission to this Office in relation to the applicability of section 36(1)(b) and 36(1)(c). In relation to section 36(1)(b), it argued that the release of the redacted information would undermine its position vis-a-vis other companies in the competitive market of securing media partnership roles with large-scale events.  In essence, its argument is that the release of the information in question would mean that its competitors can see what it offers and expects and as a result can change future bids, presumably to reflect more favourable terms, to secure rights.

In my view, the information redacted from the MoU is quite high level and contains details of what one might expect to find in an agreement of its nature. It seems to me that the information is lacking in sufficient detail or specificity such that its disclosure might enable RTÉ’s competitors undermine its position in future bids in the manner suggested.

Having regard to the general nature of the information, I am not satisfied that the release of the information at issue might give rise to the harms identified in section 36(1)(b). I find, therefore, that the section does not apply.

Section 36(1)(c)

Section 36(1)(c) provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. This Office takes the view that a party seeking to rely on section 36(1)(c) should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.   

RTÉ argued that release of the redacted information could prejudice the conduct of upcoming negotiations and has named a specific partnership arrangement which is currently being negotiated.  Referring to the redacted paragraphs as the core of the agreement, RTÉ argued that if this information was released all other event organisers and competitors would be aware of the details of what RTÉ can offer in such an arrangement.  It argued that this would result in event organisers demanding more from RTÉ to secure partnership agreements and competitors altering future bids to secure partnership agreements ahead of RTÉ.  

For the same reasons as I have set out in respect of the applicability of section 36(1)(b) above, I do not accept that the release of the information at issue might give rise to the harms identified. I find, therefore, that section 36(1)(c) does not apply.

Section 30(1)(c)

In its submission to this Office RTÉ stated that it also wished to rely on the provisions of section 30(1)(c) to refuse access to the information redacted from the MoU.

Section 30(1)(c) of the FOI Act provides that an FOI body may refuse a request if access to the relevant record could reasonably be expected to "disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body".

RTÉ’s arguments for relying on section 30(1)(c) are similar to the arguments it made in respect of the applicability of section 36(1)(c). It argued that disclosure of the redacted information could prejudice the conduct of upcoming negotiations. It stated that the redacted information is largely similar to agreements reached with other large-scale events and release of this information would clearly show the key elements of RTÉ's offering which would be of significant benefit to other bidders in what it terms a 'fiercely competitive process'.  In light of this RTÉ argued that, on balance, the public interest is best served by redacting the two paragraphs of the MoU so as to ensure a 'level playing field' between competitors.

As I have explained above, the information redacted from the MoU is, in my view, quite high level and contains details of what one might expect to find in an agreement of its nature. I am not satisfied that its disclosure could reasonably be said to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of RTÉ.  As such I find that section 30(1)(c) does not apply.

In conclusion, therefore, I find that RTÉ was not justified in redacting certain information from the MoU under sections 30 and 36 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of RTÉ to redact certain information from the MoU between RTÉ and Galway 2020 under sections 30 and 36 of the FOI Act and I direct the release of the record in its entirety.

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