Ms X and Radio Teilifís Éireann

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 22 May 2020
• Case Outcome: The Senior Investigator varied the decision of RTÉ. While he found that it was justified in refusing access to two of three records it identified as coming within the scope of the applicant?s request, he found that it was not justified in refusing access to the third record and he directed its release to the applicant.
• Respondent: Radio Teilifís Éireann
• Record Number: OIC-61324-K9D9X4
• Court: Information Commission

Whether RTÉ was justified in refusing access to records relating to, and arising from, correspondence between the applicant and RTÉ on the basis that the records fall outside the scope of the Act having regard to the FOI Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. No 115 of 2000)

22 May 2020

Background

The applicant in this case met with RTÉ staff members in the course of research its RTÉ Investigates team was conducting into care and nursing homes. The applicant was an employee of a specified nursing home. According to RTÉ, she was subsequently informed that the story was not being pursued, following which she sought a letter from RTÉ confirming that she had met with its team, but the letter sought was not issued.

In a request dated 29 November 2019, the applicant sought access to seven categories of records relating to her and/or the specified nursing home and to her subsequent correspondence with RTÉ and to a further category of records relating to her and a former employer. On 16 December 2019, RTÉ refused the request on the ground that the FOI Act does not apply to the records sought pursuant to the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. 115/2000).

On 30 December 2019, the applicant sought an internal review of the decision, following which RTÉ affirmed its original decision. On 29 January 2020, 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 correspondence between RTÉ and the applicant as outlined above and to correspondence between this Office and both RTÉ and the applicant on the matter. I have also had regard to the nature and contents of the records identified by RTÉ as coming within the scope of the request. I have decided to conclude this review by way of a formal, binding decision.

Scope of the request

In its initial submission to this Office RTÉ said it refused access to four records it identified as coming with the scope of the applicant’s request pursuant to S.I. 115/2000. During the course of this review, RTÉ released record three to the applicant. It also argued that record four was outside of the scope of the applicant’s request.

I note that part 3 of the applicant’s request is for copies of any emails, letters or text messages sent or received by RTÉ and two named staff members or any other employee/Agent of RTÉ, regarding her and the specified nursing home. While I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material, I believe I can appropriately describe record four as comprising an internal RTÉ email thread relating to the applicant’s request for a letter from RTÉ confirming that she had met with its team. I am satisfied that the record is captured by part 3 of the applicant’s request.

Accordingly, this review is concerned solely with whether RTÉ was justified in its decision to refuse access to records one, two and four.

Preliminary Issues

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI...