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

CourtInformation Commission
JudgeSenior Investigator
Judgment Date08 April 2022
Case OutcomeThe 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.
RespondentDepartment of Tourism, Culture, Arts, Gaeltacht, Sport and Media
Record NumberOIC-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...

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