Colette Sexton, Sunday Business Post and RTÉ

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 26 June 2017
• Case Outcome: The Senior Investigator found that RTÉ was justified in refusing access to the information sought under section 37(1) of the FOI Act.
• Court: Information Commission
• Record Number: 160398
• Respondent: RTÉ

Case Number: 160398

Whether RTÉ was justified in its decision to refuse access to the salaries of certain presenters and other staff members under sections 30, 35, 36 or 37 of the FOI Act

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

Background

On 22 March 2016, the applicant sought the following information from RTÉ:

1. The names of the top 20 highest earning presenters/reporters/correspondents/editors (who work in front of the camera/deliver reports on air) at RTÉ in 2014 and the amount they were paid
2. The total number of staff at RTÉ, excluding contractors, who were paid the following in 2014: more than €100,000; more than €150,000; more than €200,000; more than €250,000; more than €300,000
3. The names and salaries of the top 20 highest earning staff in 2014 who were not on air

RTÉ issued its decision on the request on 27 May 2016. In relation to part 1, it stated that the earnings of the 10 highest paid presenters for 2014 is already available on its website but it refused access to details of the next 10 highest earning presenters under sections 35, 36 and 37 of the FOI Act. In relation to part 2, it provided details of the numbers of staff falling within specific salary bands that it had previously made available in response to other FOI requests. Part 3 of the request was refused on the same grounds as part 1.

The applicant sought an internal review of the decision in respect of parts 1 and 3, following which RTÉ upheld its original decision. On 22 September 2016, the applicant sought a review by this Office of that decision.

In conducting the review, I have had regard to the correspondence between RTÉ and the applicant as described above. I have also had regard to the correspondence between this Office and both RTÉ and the applicant on the matter.

Scope of the Review

The scope of this review is concerned with whether RTÉ was justified in refusing access to (i) the names of the top 11 to 20 highest earning presenters/reporters/ correspondents and editors who worked in front of the camera in 2014 and the amounts they were paid and (ii) the names and salary details of the top 20 highest earning staff in 2014 who were not on air.

Analysis and Findings

In submissions to this Office, RTÉ relied on exemptions relating to confidentiality (section 35); commercial sensitivity (section 36); functions and negotiations of FOI bodies (section 30) and personal information (section 37). As it seems to me that section 37 is the most relevant of those exemptions, I will deal with that exemption in the first instance.

Section 37 provides for the mandatory refusal of a request if the FOI body considers that access to the records sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information that is personal information without prejudice to the generality of (a) and (b) above, including:

(ii) information relating to the financial affairs of the individual,
(iii) information relating to the employment or employment history of the individual, and
(v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record).

Section 2 also includes some exclusions to the definition of personal information. It states that the definition does not include:

(I) in a case where the individual holds or held -

(A) office as a director of,

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,
(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.

The Supreme Court, in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- The Information Commissioner [2012] 1 ILRM 301, (more commonly referred to as the Rotunda Case) considered the definition of personal information and found that it is sufficient for information to be captured by any one of the fourteen specific categories of...