Whether RTÉ was justified in refusing access, pursuant to Schedule 3 of the Freedom of Information Act 1997 (Prescribed Bodies) (No. 2) Regulations, 2000, to records relating to correspondence he submitted to RTÉ concerning alleged illegalities and governance issues at a named sporting organisation

21 June 2022

Background

It appears that the applicant wrote to RTÉ's CEO and to the Editor of RTÉ Investigates Unit in relation to what the applicant describes as illegalities and governance issues at a named sporting organisation.

On 6 April 2022 he submitted a request for the following:

1. -�Please let me know exactly what Ms. Forbes and Mr. Maguire have done with my correspondence. I first wrote to RTÉ on the 26th Oct last which is over 5 months ago. Please let me know everything RTÉ has done internally with my correspondence to date.
2. Please supply me with all internal correspondence RTÉ has in relation to mine.
3. Please let me know the dates of all meetings that have taken place within RTÉ and a summary of the discussions.
4. I would appreciate if you would let me know all discussions RTÉ had with [the named organisation]. Please supply all correspondence.
5. Please let me know of all discussion RTÉ has had with the politicians I named and supply all relevant correspondence.
6. In my letter of 4th March last, I asked Mr. Maguire to inform the RTÉ board. Please confirm same.-�

In a decision dated 4 May 2022, RTÉ refused the request on the ground that the records sought are not covered by the FOI Act pursuant to the provisions of the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000 (the Regulations of 2000). On 4 May 2022, the applicant sought an internal review of that decision, following which RTÉ affirmed its refusal of the request. It also provided some explanatory information as to how it treated his correspondence and why it could not investigate the matters complained of. On 27 May 2022, the applicant sought a review by this Office of RTÉ's decision.

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 nature of the records at issue, to the correspondence between RTÉ and the applicant as set out above, and to the correspondence between this Office and both RTÉ and the applicant on the matter. 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 the applicant's request for records relating to the correspondence he submitted concerning alleged illegalities and governance issues at a named sporting organisation on the ground that the records sought are not subject to the FOI Act pursuant to the Regulations of 2000. 

Preliminary Matters                                          

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. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. As such, I have treated the applicant's request as a request for records that might contain answers to the questions asked.

 In correspondence with this Office, the applicant expressed his dissatisfaction with RTÉ and its decision on pursuing the issues identified by the applicant. For the benefit of the applicant, it is important to note that the outset 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. Accordingly, the appropriateness, or otherwise, of the actions taken by RTÉ in relation to his correspondence is not a matter for consideration by this Office.

Moreover, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot 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 (not relevant in this case).

Analysis and Findings

On 1 May 2000, RTÉ became a prescribed body for the purposes of the FOI Act under the Regulations of 2000. The Regulations provide that RTÉ is a public body for the purposes of the Act only in respect of certain functions described in Schedule 2, namely management, administration, finance, commercial, communications, and the making of contracts of, or for, service with any person, company or other body. However, 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. In other words, if the records sought are held by RTE in the context of matters specified in Schedule 3, they fall outside the scope of the Act.

In its submission to this Office, RTÉ specifically cited the exclusions at paragraphs 1, 2 and 4 of Schedule 3. The matters captured by Paragraph 1 are 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 is produced on the basis of such information, or is broadcast-�.

The matters captured by Paragraph 2 are 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 the programme proposal submissions from internal and external sources-�.

The matters captured by Paragraph 4 are -�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-�.

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.

In his correspondence with this Office, the applicant argued that he was not seeking any editorial or financially sensitive information. He said that as RTÉ is a national broadcaster, it has obligations and he thought it ought to be transparent in its' dealings with the public.

RTÉ submitted that Schedule 3 Paragraph 4 is particularly relevant. It said that the type of information sought clearly centres on an editorial decision about what to investigate and what not to investigate.  

The information sought in this case arises from RTÉ's decision to pursue or not to pursue the issues raised in the applicant's correspondence. This type of information clearly concerns the gathering of news for journalistic or programme purposes and the process of making editorial decisions concerning programme content. As such, I find that the information sought is excluded from the scope of the FOI Act pursuant to Schedule 3 of the Regulations of 2000 and that RTÉ was justified in refusing the applicant's request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ's refusal of the applicant's request for a records relating to correspondence he submitted to RTÉ on the ground that the information sought is excluded from the scope of the Act pursuant to the Regulations 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.

Stephen Rafferty
Senior Investigator