Mr X and Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 08 April 2022
• Case Outcome: The Senior Investigator annulled the Department's decision. She found that it was not justified in refusing access to the records at issue under sections 29, 30, 35 or 36 of the FOI Act and she directed the release of the records to the applicant.
• Court: Information Commission
• Respondent: Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media
• Record Number: OIC-102338-Y8D7Q1

Whether the Department was justified in refusing access to records relating to an application by RTÉ for a proposed amending regulation to the RTÉ superannuation scheme under sections 29, 30, 35 or 36 of the FOI Act

8 April 2022

Background

In a request dated 9 November 2020, the applicant sought access to “all communications relating to an application by RTÉ for a proposed amending regulation (regulation 136) to the RTÉ Superannuation Scheme, to include communications between the Department and RTÉ, DPER and New Era and any other third party that has made representations or observations in relation to this request by RTÉ.” In a decision dated 11 December 2020, the Department identified 26 records and it refused access to these records under section 29(1) of the FOI Act (deliberations of FOI Bodies). On 17 December 2020, the applicant sought an internal review of that decision. On 13 January 2021, the Department varied its original decision. The Department released a number of records, which had previously been refused with the redaction of personal contact details from some of these records under section 37(1) of the FOI Act. The Department refused access to the remaining records under sections 29(1), 35(1)(a) (confidential information) and section 36(1)(c) (commercially sensitive information) of the FOI Act. On 15 January 2021, the applicant sought a review by this Office of the Department’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 submissions made by the applicant, the Department the NTMA, RTÉ and the Trustees of RTÉ Superannuation Scheme. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, this Office provided the applicant and the Department with an opportunity to make submissions. In his submissions to this Office, the applicant stated that he is not requesting a review of the Department’s decision to redact certain information under section 37(1) of the FOI Act. Accordingly, the Department’s decision to redact information under section 37(1) of the FOI Act from records 1, 2, 3, 9 - 15 and 25 falls outside the scope of this review. The Department released records 4 - 8, 16 - 18, and 21 to the applicant at internal review stage or during the course of this Office’s review. Those records will therefore be excluded from this review. Record 20 was created after the date the applicant made his FOI request, it also falls outside the scope of this review.

This Office also provided the NTMA, RTÉ and the Trustees of RTÉ Superannuation Scheme with an opportunity to make submissions. In its submissions, RTÉ contended that the records at issue are also exempt under sections 30(1)(b) and (c) and 36(1)(a) and (b) of the FOI Act and I have also considered those provisions in this review.

Accordingly, the scope of this review is confined to whether the Department was justified in refusing access to records 19, 22, 23 and 24 under sections 29(1), 30(1)(b) or (c), 35(1)(a), or 36(1)(a) or (b) or (c) of the FOI Act.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

I can say that the records concern the question of whether the Minister should approve a change proposed by RTÉ to the regulations governing the RTÉ Superannuation Scheme to require the Scheme to cover certain of its own administration expenses. The fact of the proposal itself is in the public domain, as are the reasons it is being sought. The Department asked NewERA to provide observations and advice on the proposal. Records 22, 23, and 24 contain NewERA’s advice and record 19 contains the Department’s consideration of NewERA’s advice. While the records contain a small amount of information in relation to RTÉ, the main focus of the records is on the RTÉ Superannuation Scheme.

Analysis and Findings

Section 29 – Deliberations of Public Bodies

Section 29(1) provides that a head may refuse to grant an FOI request: (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met.

The applicant states that while he made this FOI request in his own name, it was made on behalf of the RTÉ Retired Staff Association (RTÉSA), which represents the 1800 members of the RTÉ Defined Benefit Pension Scheme. He states that his FOI request relates to a request by RTÉ to the Minister to change the rules of the RTÉ Superannuation Scheme, which would have the effect of imposing a levy on the pension savings of RTÉ employees. He contends that to use “ongoing deliberative process” as a cloak to conceal a process from 1800 RTÉ pensioners would result in secret decision making with no opportunity for evidence based rebuttal. He also contends that section 29 of the FOI Act does not permit the refusal of the factual information contained in the records which were refused in their totality.

The Department states in order to progress the consideration of RTÉ’s request, its officials asked NewERA to provide advice on the proposal. It states that NewERA’s core role is to provide financial and commercial advice to Government Ministers and Departments in relation to their shareholdings in State-owned companies. The Department states that the decision making process in relation to this matter is still ongoing and will not be concluded until the Minister and the Minister for Public Expenditure and Reform have concluded their deliberations.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. I am satisfied that the records contain opinions, advice and recommendations provided by NewERA to the Department to assist it in its consideration of RTÉ’s request.

I have considered whether any of the exceptions to section 29(1) which are contained in section 29(2) apply to the records. Section 29(2)(b) provides that section 29(1) does not apply insofar as the records contain factual information. Section 2 of the Act states that “factual information” includes information of a statistical, financial, econometric or empirical nature, together with the analysis thereof. While there are some references to financial information in the records, much of this information consists of projections and estimates by New Era. In my view, the records contain an evaluation or weighing up of RTÉ’s proposal by New Era as opposed to factual information. I am satisfied, therefore, that the records concerned contain matter relating to the deliberative processes of the Department. However, this is not the end of the matter because, as outlined above, I must also consider whether the release of the records would be contrary to the public interest.

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Indeed, section 11(3)(c) of the FOI Act points to “the need to inform scrutiny, comment and review by the public of the activities of FOI bodies…” Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

The applicant states that RTÉ, as a state company, has the sole right to request changes to the rules of the scheme, which was established by the Broadcasting Act 1960 as amended. He states that the RTÉ pensioners who contributed their pension savings over 40 years have no right to consultation in any form relating to such fundamental aspects of their pension savings. He states that most other semi-state funded pension schemes operate under similar legislation. He states that this case is an important precedent on a matter of “public interest” to tens of thousands of state employees. According to the applicant, not even the Trustees of the RTÉ Scheme are privy to the...