Mr X and Radio Telefís Éireann

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 20 April 2017
• Case Outcome: The Senior Investigator affirmed RTÉ's decision to refuse access to the records. She found that the records were created as part of a process of making editorial decisions or as part of a process of post-transmission internal review of programmes broadcast. She found therefore, that the records fall outside the scope of the Act, having regard to the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations 2000 (S.I. No. 115 of 2000).
• Court: Information Commission
• Record Number: 160336
• Respondent: Radio Telefís Éireann

Case Number: 160336

Whether RTÉ was justified in refusing access to records relating to a programme broadcast in April 2016 on the basis that the records are exempt under section 36(1)(b) and 36(1)(c) or otherwise

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

Background

On 18 April 2016, the applicant made an FOI request to RTÉ for access to records which contain the following information:

"Details of the amount of money paid to a [named] production company for a [named] interview, which aired in April 2016, any breakdown of how this money was spent plus all correspondence between RTÉ and the production company regarding the documentary."

On 15 June 2016, RTÉ refused the applicant's request on the basis that the records contain commercially sensitive information (section 36(1)(b) and 36(1)(c) of the Act). The applicant requested an internal review of RTÉ's decision. On 23 June 2016, RTÉ upheld its original decision. On 16 August 2016, the applicant applied to this Office for a review of RTÉ's decision.

During the course of the review, the applicant confirmed in writing to this Office, that he was agreeable to narrowing the scope of his request to:

"Records which relate to money or expenses paid to a [named] individual or members of the individual's family in connection with the documentary"

This Office informed RTÉ of the revised request and identified the records that fall within the scope of the revised request. Following consultations with the production company and the individuals to whom the records relate, RTÉ argued that the records identified should not be released. RTÉ said that the records fall outside the scope of the FOI Act, having regard to the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations 2000 (S.I. No. 115 of 2000). RTÉ also argued that, even if the records do fall within the scope of the FOI Act, they are commercially sensitive.

This Office informed the applicant of the additional grounds relied on by RTÉ. In reply, the applicant argued that the records requested do not fall within the exclusion in S. I. 115 of 2000 and are not commercially sensitive and should be released in the public interest.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between RTÉ and the applicant, to correspondence between RTÉ and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of the Review

A number of the records originally identified by RTÉ as relevant to the applicant's request, were created after the date of the request. Those records have not been considered for the purposes of this review. Two records fall within the scope of the applicant's narrowed request. The scope of this review is confined to the following issue:

- Whether RTÉ has justified its decision to refuse access to records 1 and 2 on the basis that the records fall outside the scope of the FOI Act having regard to S.I. 115 of 2000, or on the basis that the records are commercially sensitive and are exempt under section 36(1)(b) or 36(1)(c) of the FOI Act 2014.

Preliminary Matters

Section 13(4) of the FOI Act provides that, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not...