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Radio Telefís Éireann v the Information Commissioner

This judgment was given by the High Court on an appeal by RTÉ against the Commissioner's decision in Case Number 020336 - Mr X and RTÉ.

Note: The judgement on this appeal was given by Mr. Justice Ó'Caoimh on 11 June 2004 and a copy of his judgement is reproduced below, which was obtained from the BAILII website.

THE HIGH COURT

[2002 No. 106 MCA]

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997 AND IN THE MATTER OF AN APPEAL BY RADIO TELEFIS EIREANN PURSUANT TO SECTION 42(1) OF THE FREEDOM OF INFORMATION ACT, 1997 BETWEEN

RADIO TELEFIS EIREANN

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 11th day of June, 2004.

This matter comes before this court by way of an appeal on a point of law pursuant to s. 42 of the Freedom of Information Act, 1997 (hereinafter referred to as 'the Act of 1997'), from a decision of the respondent (hereinafter referred to as 'the Commissioner') whereby he decided to annul a decision of the appellant (hereinafter referred to as RTÉ) whereby it refused a request made by a requester pursuant to the Act of 1997 for access to records on data collected on the amount of broadcast time allocated to each political party during the general election campaign of 2002.

This appeal on a point of law raises essentially an issue of interpretation of the provisions of the Act of 1997 and Statutory Instrument 115 of 2000 being the Freedom of Information Act 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (hereinafter referred to as 'the Regulations of 2000').

RTÉ was not a prescribed body for the purposes of the Act of 1997 until the making by the Minister for Finance on 1st May, 2000 of S.I. No. 115 of 2000. Article 2 of these regulations provides as follows:-

"1. These Regulations may be cited as the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000.
2. (1) Subject to paragraphs (2) and (3) of this Regulation, the bodies, organisations and groups specified in Schedule 1 to these Regulations shall stand prescribed for the purposes of paragraph 1(5) of the First Schedule to the Freedom of Information Act, 1997 (No. 13 of 1997).

(2) Subject to paragraph (3) of this Regulation, the Freedom of Information Act, 1997, shall apply to a body, organisation or group prescribed by paragraph (1) of this Regulation only as respects the functions of the body, organisation or group which are specified in Schedule 2.

(3) For the purposes of these Regulations the functions specified in Schedule 2 to these Regulations shall be deemed not to include any of the matters specified in Schedule 3 to these Regulations."

SCHEDULE 1

1. Radio Telefis Éireann.
2. RTE Commercial Enterprises Limited.
3. RTE Music Limited.
4. Seirbhísí Theilifís Na Gaeilge Teoranta.
5. DTT Network Company."

Accordingly, it can be seen that the RTÉ is a body to which the Act of 1997 applies. Having regard to Article 2 (2) it will be appreciated that the full Act was to apply to RTÉ "only as respects the functions of the body (RTÉ), organisation or group which are specified in schedule 2". The second schedule to the Regulations of 2000 list the functions as:-

"1. Management.
2. Administration.
3. Finance.
4. Commercial
5. Communications.
6. Making of contracts of or for service with any person, company or other body."

In his decision of 5th December, 2002 the Commissioner indicated that two sets of data collected by RTÉ fell within the scope of the request of the requester. He states one set was gathered using the "contributor tracking" information technology programme, which depended on inputs by production staff, and was in place from 1st January, 2002 to the end of the election campaign (15th May, 2002). The second set was gathered by two researchers employed at the beginning of April, 2002 to monitor all radio and television outputs for the general election and was in place to the end of the election campaign. He indicates that the data constituted a record of how much broadcast time each political party received during the general election campaign. The Commissioner indicates in his decision that the data was refused by RTÉ on the basis that they related to the editorial process of RTÉ and were not covered by the Act of 1997. The Commissioner refers to the fact that RTÉ stated in its earlier decision that the information gathered was "to assist RTÉ in its editorial processes and to work towards balanced programming across its range of output".

In his decision the Commissioner recognised that under s. 18 (1) of the Broadcasting Authority Act, 1960 as amended by s. 3 of the Broadcasting Authority (Amendment) Act, 1976, RTÉ is required to maintain impartiality in broadcasting of certain matters. Section 18 (1) of the Act of 1960 as amended provides as follows:-

"(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that:

( a ) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority's own views,

( b ) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority's own views,

( c ) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.

Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.

(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual."

Having referred to this section the Commissioner indicated that while not wishing to express a general definition of what records might be covered by "management" and "administration" functions listed in Schedule 2, he did consider it possible that these headings could refer to records related to matters including compliance with statutory obligations, strategy, policy, planning and development, personnel, recruitment, information technology, accommodation, internal organisation, office procedures and the like. He indicated his view that compliance with the overall statutory obligations of RTÉ is clearly a function of the management of that body. He states that the question of whether the data in question in this review is held by RTÉ or was created by it in the performance of its management functions must therefore be considered. The Commissioner referred to an earlier letter that had issued to RTÉ in which the preliminary view was expressed by his office that the data in question in the review related to a management function as the dominant purpose for collecting the data was to ensure compliance with RTÉ's statutory obligation as it effects programming. The same letter indicated the view of his office that the data in question did not come within the ambit of Schedule 3. The Commissioner indicated that RTÉ did not refute this view but indicated that the records were compiled to "assist ourselves in the task of fulfilling our statutory obligations" and that RTÉ monitors referenda and election reporting to ensure that balance is achieved. The latter then contains "in fairness to RTÉ, however, their earlier letter of 14th October, 2002 had argued strongly that the records were created "to assist us in the editorial function of making programmes". In this regard it must be appreciated that the Commissioner recognised that RTÉ's case was that the material in question fell within the third schedule to the Regulations of 2000 and as such were deemed not to be included in the matters specified in the second schedule.

Schedule 3 to the Regulations of 2000 provide as follows:-

"SCHEDULE 3
1. The gathering and recording in any form of news, information, data, opinions, on or off the record quotes or views from any person or source, for journalistic or programme content purposes, whether or not a programme.
(a) is produced on the basis of such information, or
(b) is broadcast.

2. The identification of any potential or actual source of information or material for the purpose of programme origination, whether or not such programme is produced or broadcast and without prejudice to the generality of the foregoing, shall include the consideration of programme proposal submissions from internal and external sources.`

3. The editing and storing of any material recorded by any means, whether written, aural, visual or otherwise, for the purpose of programme origination, whether or not such programme is produced or broadcast.

4. The process of making editorial decisions concerning programme or programme schedule content which, without prejudice to the generality of the foregoing, shall include preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions.

5. The process of post-transmission internal review and analysis of any programme schedule of programmes broadcast."

The Commissioner indicated that RTÉ had made the point that the function of the steering group set up by RTÉ to review and preview all programming, in order to assess programme balance, is the most important part of the editorial process (rather than an analysis of the data on times allocated to each party as gathered by RTÉ). The Commissioner indicated that he accepted this point and saw that the raw data in question was only one element in a larger process to ensure compliance with RTÉ's statutory obligations.

The Commissioner then indicated that what he had to decide was whether or not the data came within one or more of the functions listed in Schedule 2 of the Regulations of 2000. He indicated that the essential question which he had to address was whether or not the records in question were held or were created by RTÉ in the context of the functions set out in Schedule 3. The Commissioner then set forth his view of each of the paragraphs in Schedule 3. With regard to para. 1 he indicated his view that this paragraph protects information held or created specifically for the making of a programme, whether or not it is made or broadcast. He concluded that the data in question were not created in the course of research for programme making or with the intention of making a programme and so in his view were not covered by this paragraph.

With regard to the paras. 2 and 3 of the schedule he indicated his view that these provide for the protection of generalistic sources. He concluded that the data in question were not created in the context of the functions listed in the paragraph. He indicated further that para. 3 covers the editing and storing of material recorded for the purpose of programme origination. He said: "It is clear that the data in question were not recorded for the purposes of programme origination and accordingly are not covered by this paragraph".

With regard to para. 4, the Commissioner indicated his view that this paragraph excludes from the Act, the process of making editorial decisions concerning programme or programme schedule content, to include (without prejudice to the generality of the foregoing) preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions. He indicated that, as he interpreted RTÉ's case, it claims that the data at issue were created to aid RTÉ in the process of making editorial decisions concerning programme planning and that in this context the data were an integral part of that process. He indicated that the objective was to establish whether or not a bias in favour of a particular political party was resulting from ongoing programmes and if so to adjust planned programmes to ensure impartiality in accordance with RTÉ's statutory obligations. He indicated that it seemed to him to be an arguable case, which had to be set against the earlier argument that the data were held or created in the context of RTÉ performing one of its management functions i.e. ensuring impartiality. He accepted the possibility to argue in this case, that the data which provided the basis for a possible editorial decision were specifically commissioned to enable such a decision to be correctly made. He expressed the view that a distinction cannot be drawn between the data in this case and data generally by reference to which RTÉ attempts to comply with its statutory responsibility for impartiality.

The Commissioner considered it necessary to examine the rational behind the exclusion from the Act of 1997 of RTÉ's programming functions. He took the view that it is clear from the Regulations of 2000 that these were designed to protect the integrity of those functions including the process of editorial decision making and the sources which contributed to the making of particular programmes. He stated that it seemed to him that it might be a worth while exercise to look at other provisions of the Act designed to protect the integrity of decision making processes in public bodies. With regard to this paragraph it is submitted that the view taken by the Commissioner is too narrow. Later in his decision the Commissioner indicated his view that it is clearly essential that the management function of RTÉ operates so as to meet its statutory obligations. He indicated as follows:-

"It seems to me that the release of data of the kind in question supports that process and ensures that RTÉ's overall statutory responsibilities are met."

With regard the fifth paragraph of the third schedule the Commissioner indicated that this paragraph excludes the process of post transmission internal review and analysis of any programme or schedule of programmes broadcast. He accepted that the data in question in this review may be used in the process of internal review and analysis but he took the view that the considerations which apply in relation to para. 4 apply equally here.

Under the heading of 'Findings' appearing in the decision, the Commissioner indicated that he had come to the conclusion that the data at issue in this case were created and held by RTÉ in the context of its performing its management functions of ensuring impartiality in broadcasting of news and current affairs. He added:-

"While the data concerned represent information on which the process of editorial decision making may have relied, or by which it may have been influenced, the data were created for the purpose of ensuring balanced programming in accordance with RTÉ's legal obligations. I draw a distinction between the 'process of making editorial decisions', which would include records of discussion at editorial meetings and records of decisions taken, and the data or information on which such process relies."

On this basis he concluded that RTÉ was not justified in refusing access to the records in the case.

The essential case made by RTÉ is that the Commissioner erred in law in concluding that the data in question should be disclosed notwithstanding the provisions of paras. 4 and 5 of the third schedule to the Regulations of 2000. It should be observed that in the grounding affidavit of Ms. MacGinley reference is made to paras. 4 and 5 of Schedule 3 to the Act of 1997 but it is self evident that this is a patent error in the paragraph in question. Ms. MacGinley indicates her belief that the Commissioner had not correctly or accurately assessed the nature and extent of the editorial function within RTÉ. Her essential view was that the collection of the data, the subject of the request, was not a management function but an editorial function and fell within para. 4 of Schedule 3 to the Regulations of 2000. She also contended that the regulations fell under para. 5 of that schedule.

Further evidence has been put before this Court on behalf of the appellant, RTÉ by Mr. Peter Feeney and Mr. Edward Mulhall being the Freedom of Information Officer in RTÉ and the Director of News in RTÉ respectively. Mr. Mulhall indicates that at general elections a special committee is established internally within RTÉ, known as the General Election Steering Group to try to ensure that overall balance is achieved across the entire range of RTÉ's programme output. He indicates that it is a high level group comprising the Director General (in his capacity as Editor in Chief of RTÉ), the Director of News, the Director of Radio, the Director of Television and a Secretary from the Communications Division. He indicates that this represents the core membership of the steering group. He indicates that in addition to the monitoring in the measure of time that is allocated to various political party or points of view that the monitor reports were supplemented by data collected by computerised contributor tracking system. He indicates that following meetings of the steering group the views and considerations expressed at its meetings are brought back to the output areas through the mechanism of divisional editorial meetings.

It should be stated, however, that much of the affidavit of Mr. Mulhall is in the nature of a submission and it is not proposed accordingly to refer to same. In reply to this affidavit, an affidavit has been sworn by Mr. Liam Kelly who describes himself as a senior investigator with the Office of the Information Commissioner. It should also be stated that his affidavit is largely in the form of a submission on argument. Accordingly, it is not proposed to refer to these submissions as they should not be in the affidavit in the first place. At para. 11 of his affidavit he indicates what appears to have been the approach taken by the Commissioner in regard to the request for access to the records in the instant case by indicating that this necessitated a determination in the very instance of whether the records were held by the appellant in the context of the performance by it of the functions specified in Schedule 2. He further indicates, in reference to Mr. Mulhall's affidavit, insofar as s. 18 of the Act of 1
960 is referred to, that the use of the term "editorial obligation" by Mr. Mulhall is something which Mr. Kelly indicates was designed to distance the statutory obligation created by s. 18 from RTÉ's management function.

In para.14 of his affidavit Mr. Kelly refers to Mr. Mulhall's acceptance of the fact that there may be an overlap between management functions and programme related functions and that certain management functions inevitably relate to programme matters. He states:-

"In the circumstances, I say and believe that the potential categorisation of matters as "editorial" does not exclude them from the management function. In any event, I say and believe that the issue of whether matters ought properly be categorised as "editorial" does not in the present context arise until and unless records requested under the Act are found to have been generated and/or held in the context of a Schedule 2 function, such as the management function."

In para. 29 of his affidavit Mr. Kelly observes that in the internal review RTÉ relied upon the matters specified only at para. 4 of the Schedule 3 to the Regulations of 2000 in reaching its determination but he indicated that the Commissioner in conducting his review gave careful consideration to all of the matters specified at each of the paragraphs 1 to 5 of the schedule.

At para. 31 of his affidavit Mr. Kelly indicates that the Commissioner drew a clear distinction between "the process" of making editorial decisions and the data or information upon which such processes rely. He indicates his belief that the generation and holding of the said records did not involve any process of making editorial decisions or of post transmission internal review, but merely a collating of factual and statistical data and information. He indicates the conclusion that the records at issue were not generated in the course of one of RTÉ's processes and are protected by Schedule 3.

A further affidavit has been sworn by Mr. Mulhall in which he indicates his belief that Mr. Kelly has failed to grasp the innately organic nature of the process by which editorial decisions are made within RTÉ. He states that the making of editorial decisions is not a cut-and-dried hierarchical process. It is in fact a series of different editorial decision making processes which take place at different levels and in different output areas of a broadcasting organisation, particularly in the areas of news and current affairs.

Mr. Mulhall also indicates that the steering group is an additional forum which is set up and integrated into the editorial decision making process within RTÉ at the time of referenda and general elections.

SUBMISSIONS

On behalf of RTÉ Mr. Maurice Collins, S.C. submitted that the Commissioner's conclusion that the records fell to be disclosed under the Act of 1997 was wrong and that he erred in the manner in which he construed and applied the Regulations of 2000. Counsel for the appellant submits that all the functions specified in Schedule 2 to the Regulations of 2000 have a common identity insofar as they pertain to business matters of RTÉ. Counsel refers to the history of the Freedom of Information Act and the fact that RTÉ was not originally covered by the terms of the Act of 1997. Counsel indicates that all of the functions of RTÉ which are not specified in Schedule 2 and not excluded by Schedule 3 fall outside of the terms of the Act of 1997. Counsel submits that the Oireachtas having permitted the making of the regulations in question, the regulations were made in a manner which only apply the Act in a very limited way to RTÉ and its associated companies. It is submitted that the Commissioner read into the schedules a consideration of a role of what was the dominant context in any given case and that in this regard he erred.

Counsel submits that while the Information Commissioner construed that the management function is one ensuring that RTÉ complied with its requirements under s. 18 of the Act of 1960 as amended, RTÉ's case is that what is involved is in essence an editorial matter. It is submitted that it is only through an editorial process that compliance with s. 18 can be achieved. It is submitted that the function of the monitoring exercise was to enable RTÉ to have accurate picture of its outlook and critically to adjust its future programming adequate if necessary. This was to ensure that when the campaign in question concluded that RTÉ had complied with its obligations under s. 18. Counsel submits that the application of the Regulations of 2000 does not involve a balancing exercise. On this basis it is submitted that reference to ss. 19 and 20 of the Act are irrelevant. Counsel submits that the Commissioner was wrong to purport to severe the process from the data used in the process in question. Counsel submits that the material comes within the fifth paragraphs of Schedule 3 to the Regulations of 2000. Counsel submits that it is incorrect to say that the potential categorisation of matters as editorial does not exclude them from the management functions. In this regard, reference is made to para.14 of Mr. Kelly's affidavit.

Counsel submits, having referred to the relevant provisions of the Act of 1997 and the Regulations of 2000, that the following propositions arise:-

"1. The Act of 1997 applies only to the functions specified in the second schedule to the regulations. Unlike the position in most other public bodies to which the Act applies, it does not apply generally to records in the possession of RTÉ.

2. It follows that records relating to other functions of and other aspects of the activities of RTÉ fall outside the ambit of the Act of 1997.

3. The position is further qualified by Regulation 2 (3), by virtue of which the matters identified in Schedule 3 are expressly excluded from the functions specified in Schedule 2 (including the management function). In other words, even if any particular record or records might be said to relates or relate to a function specified in Schedule 2, it is none the less excluded from the application of the Act if the record or records relates to matters specified in Schedule 3. This information or data gathering for programme content purposes and the entire editorial process concerning programming or programme scheduling (from the inception of proposals to the conclusions of any post transmission review or analysis) is deemed to be excluded from the definition of the management function of RTÉ for the purposes of Schedule 2.

4. In light of the foregoing, there is no room for any presumption, formal or informal, that any particular record or category of records held by RTÉ, come within the ambit of the Act of 1997. On the contrary the application of the Act of 1997 represents the exception rather than the norm."

Counsel takes issue with the contention that the obligations under s. 18 of the Act of 1960 be categorised as management functions. It is submitted that RTÉ complies with these obligations when making decisions regarding the content, scheduling and balancing of its programmes all of which is quite essentially part of the editorial process. It is submitted that the fact the RTÉ Authority is ultimately answerable for its compliance with s. 18 does not render such compliance a 'management function'. It is submitted that the Authority is responsible for all aspects of RTÉ's affairs, including all aspects of its programming. To suggest that this renders programme making a management function is unsustainable. Counsel submits that the management of RTÉ has an interest in ensuring that the station complies with all of its statutory obligations but that does not transform into a management function, the process of ensuring that, in terms of its programme making, such compliance is achieved.

Counsel questions what he submits has been the approach of the Commissioner to apply some form of "dominant purpose" test in finding that the dominant purpose for which the records at issue were created was the "management function" of RTÉ. Counsel submits that once the relevant records were created in connection any of the matters referred to in Schedule 3 – even if the records had other purposes or functions -then they fall to be excluded from Schedule 2 of the Regulations of 2000. Counsel submits that the excluded matters trump the included functions so that, where an included function appears to extend to an excluded matter, the latter is excluded, not included, by operation of the regulations.

Counsel submits that were one entitled to apply a 'dominant purpose' approach that the scheme of the regulations would be frustrated. It is submitted that programme making responsibilities are invariably devolved by management onto producers, editors or journalists. There could be no meaningful protection of the integrity, independence and objectivity of RTÉ's news and current affairs output if the fact of ultimate managerial responsibility for it, or the possibility of managerial intervention concerning it, were held insufficient to displace an exemption from the obligation to make disclosure in respect of matters of information gathering, data gathering, editorial activities and internal analysis and review.

Counsel submits that the emphasis of the Commissioner on the composition of the steering group is irrelevant.

Dealing with the Schedule 3 it is submitted that para. 1 thereof includes within its scope the gathering and recording in any form of news, information, or data for journalistic or programme content purposes. It is submitted that the use of the disjunctive 'or' between the word journalistic and the term 'programme content', clearly establishes that the scope of the paragraph extends beyond simply journalistic research.

Counsel submits that the Commissioner rather than relying on RTÉ's guidelines in construing this paragraph ought to have had regard to, and only to, the relevant provisions of the Regulations of 2000. It is submitted that para. 1 is not restricted to data collected for the purpose of "making a programme". Counsel submits that it is clear that the records at issue contain "data for journalistic or programme content purposes", being data collected for the purpose of informing the content of RTÉ's programme output during the general election insofar as it related to party political coverage. Accordingly, counsel submits, by reference to para. 1 of the schedule, that the material sought falls outside the application of the Act of 1997.

With reference to para. 4 of Schedule 3 it is submitted that this deems "[t]he process of making editorial decisions concerning programme or programme schedule content" to be among the matters excluded from the management or administration functions that fall within the scope of the Act of 1997. Counsel refers to the fact that the paragraph continues by clearly stating that, "without prejudice to the generality of the foregoing", that the process shall include all preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions. On this basis it is submitted that the editorial process is being broadly, rather than narrowly defined. Counsel submits that it extends beyond programme content to programme schedule content, preliminary programme proposal reviews, programme planning decisions, and final pre-transmission editorial decisions.

Counsel questions how the data at issue can possibly be construed as being unconnected with the editorial process. Counsel indicates that the submission of RTÉ is that the data concerned were collected, collated and applied for no other purpose.

With reference to para. 5 of Schedule 3, counsel notes that the Commissioner first concedes that the data at issue is used in the process of post transmission internal review and analysis of programmes and programme schedules but takes the view that the considerations which he has applied in relation to para. 4 apply equally to para. 5. It is submitted that for the reasons contended with regard to para. 4 that the Commissioner has misconstrued paragraph. 5 also.

Counsel submits that the purpose which underlies Regulation 2 para. 2 and para. 3 and Schedule 3 of the Regulations of 2000 is the protection of the integrity and independence of programme making process by excluding all records relating to that process, as an organic while, from the application of the Act. It is submitted that the provisions of Schedule 3 reflect an understanding, generally shared, that excessive scrutiny of the process, rather than the product, may stifle, rather that nurture, free expression in journalism.

On behalf of the Commissioner it is submitted by Mr. Paul Gardner, S.C. that the Court should have regard to the terms of the submissions made by RTÉ in response to the request for information from the individual concerned and in this regard counsel refers to an e-mail of 27th May, 2002 in which RTÉ's view was expressed to be that, the records of the monitoring process and the minutes of the steering groups were exempt from access through the Freedom of Information request as they relate to the editorial processes of RTÉ. Further counsel refers to the preliminary findings made by the Commissioner which were not challenged at the time by RTÉ. Counsel refers to the provisions of s. 34 (12) of the Act of 1997 which provides that in a review by the Commissioner a decision to refuse to grant a request shall be presumed not to have been justified unless the public body concerned shows to the satisfaction of the Commissioner that the decision was justified. On this basis it is submitted, as was indicated to RTÉ, that the onus is on it to show that the decision to refuse the data was justified. Counsel submits that as RTÉ falls within the terms of the Act of 1997 that a heavy onus rests on it to show why the documents should not be disclosed. Counsel submits that the onus is on RTÉ to show that the Commissioner got it wrong when he held that the burden had not been discharged.

Insofar as counsel for RTÉ had criticised the reliance by the Commissioner on the programme makers guidelines, it is submitted that in circumstances where the Commissioner indicated in advance that he was going to rely on these and no issue was taken with this aspect of his preliminary conclusions that RTÉ cannot now complain in this regard. Counsel further refers to the fact that in RTÉ's case no reference is made to para.1 of Schedule 3 as opposed to paragraphs 4 and 5. It is further submitted that reliance on para. 5 was not really relied upon. Counsel refers to the fact that para. 1 was raised by the Information Commissioner. No issue was taken in this regard with what he had to say. On this basis it is submitted that the first part of the case advanced on behalf of RTÉ was one that was not previously advanced to the Commissioner. Counsel refers to the fact that in his decision the Commissioner referred to how he interpreted the case being made by RTÉ at the time. It is submitted that it has been accepted by RTÉ that the Commissioner understood its case. Counsel further submits that it is possible that a matter or data may have two uses and that it is permissible to refer to a dominant purpose in this regard. In any event counsel further refers to the essential findings of the Commissioner in his decision under that heading. Counsel refers to the findings of fact as reflected in the first paragraph under this heading. In this regard he indicates the purpose for which the data was gathered. Counsel asked theoretically: "did the Commissioner apply the correct test?" Counsel asked was there evidence upon which the finding was based or on the other hand was the decision in question irrational. Counsel submits that the court should look at the documentation to see if the respondent was applying its mind to the matter. Counsel submits that the Commissioner correctly identified the issues in the matter before him. In this regard, counsel refers to the analysis portion of the decision at issue. In this regard he stated:-

"In other words, if I were to find that the records concerned were held by RTÉ in the context of its functions in Schedule 3, I could not also find that they are held by RTÉ in the context of its function in Schedule 2."

Counsel submits that if the data is held in the context of functions set out in Schedule 2 that the same is not excluded if it is not used in editorial decision making. Counsel refers to the conclusion of the Commissioner that the compliance with the overall statutory obligations of RTÉ is clearly a function of the management of the body.

Counsel further refers to the portion of the impugned decision where the Commissioner indicated that the essential question he had to address was whether or not the records in question are held or were created by RTÉ in the context of the functions set out in Schedule 3. Counsel submits essentially that the fulfilling of the statutory obligations including that in s. 18 of the Act 1960 is properly considered to be a management function, notwithstanding the fact that it may have an editorial impact. Counsel further submits the fact that the considerations of the steering group were later considered at editorial conferences does not change the nature of the function as one of management. Counsel submits that if the material at issue was created as part of the management process or function but thereafter goes over to the editorial function that this does not change the overall situation and that the deeming provision does not apply.

Counsel stresses that the statutory obligation is a matter for the RTÉ authority which is conducted through the board or its chief executive. It is submitted that ultimately the management of the station is a matter for them.

Counsel refers to the statutory instrument as having been unhappily drafted. Counsel submits that the case made on behalf of RTÉ is one whereby the court is asked to construe the exception widely and the general provision narrowly. Counsel submits that what are excluded by the regulations are editorial decisions. Counsel stresses that it is the management that has the statutory obligation and that it does not discharge same merely by the editorial process save on the direction of the management.

In reply on behalf of the appellant it was submitted by counsel that, insofar as this is not a judicial review that the appellant is not confined to Wednesbury principles of irrationality. It is submitted that there is no factual issue arising in the proceedings save as to how to categorise the factual elements in the case. Counsel further refers to the fact that there is no dispute as to the purpose for which the data concerned were used. This is the purpose of compliance with s. 18 of the Act of 1960. Counsel submits that the essential question is whether the Commissioner was correct in his conclusions and if the count considers otherwise, it has a duty to intervene.

Insofar as it was contended on behalf of the Commissioner that the appellant could not go beyond the terms of paras. 4 and possibly 5 of Schedule 3, counsel refers to the para. 29 of Mr. Kelly's affidavit which indicates that the Commissioner took all the paragraphs into consideration in his determination. On this basis it is submitted that the appellant coming before this court is not confined in regard to the paragraphs contained in Schedule 3.

Counsel stresses that the Commissioner misconstrued Schedule 3 and in particular paras. 4 and 5 thereof. Counsel submits that the Court must have regard to the fact that RTÉ and its associated companies have been designated for the purposes of the Act of 1997 only as respect the functions of RTÉ and its associated companies which are specified in Schedule 2 and this is subject to the terms of Schedule 3. It is submitted that in the context of any overlap between Schedule 2 and Schedule 3, that Schedule 3 should prevail.

It is submitted that the only sensible construction of the Regulations of 2000 is to construe programming functions as falling outside the terms of the Schedule 2 functions. It is submitted that, the Commissioner has inverted Schedule 2 and Schedule 3 insofar as he is considered the dominant function.

It is submitted that the fact that certain matters were contained in the draft decision of the Commissioner does not make the ultimate decision immune from challenge if the matter was not challenged at that time. Counsel refers to the uncontroverted fact that the data in question was commissioned for and only for the purpose of being used to ensure compliance with s. 18 of the Act of 1960. It is submitted that this indisputably must be an editorial process.

Counsel refers to para. 8.23 of the Commissioner's submission where it is submitted that raw data such as that recorded in the records in the instant case, to which regard may have been had by those party to the process of making editorial decisions and upon which the process may have relied, does not constitute information falling within the variety of information protected by para. 4 of Schedule 3. Counsel in this regard submits that it is clear that the Commissioner accepts that the information may be used in the process of editorial review and submits that having regard to Schedule 3 that data consisting in part of the editorial process falls outside the purview of the Act.

Counsel submits with regard to the distinction sought to be drawn by the Commissioner between data and the process to which it is applied, that this is not to be found in any part of the Regulations of 2000. Counsel refers to Schedule 3 as indicating the sweeping nature of the exclusion in question. Counsel submits that the regulations do not exclude particular documents but excludes all documents in the editorial process.

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CONCLUSIONS

In the first instance this Court is in as good a position as the Commissioner was in considering the matters at issue in these proceedings. Counsel for the Commissioner relies upon s. 34 (12) of the Act of 1997 which provides:-

"(12) In a review under this section—
( a ) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified, and
( b ) a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."
and submitted that an onus of proof lay on RTÉ to establish that the initial decision taken by it was correct. In light of the limited application of the Act of 1997 by reason of Article 2 (2) of the Regulations of 2000 it is not at all clear that the request for information from a body that is not a prescribed body or, as in the case of RTÉ, is only a public body in limited respects, and the information in question may not pertain to that body insofar as it may be a public body in those limited respects, can constitute an application under s. 7 of the Act of 1997. The right of access to information in s. 6 of the Act of 1997 is expressed in the terms of "access to any record held by a public body". The substance of the case made by RTÉ is that for the purposes of the application in question it is not a public body. Nevertheless, counsel on behalf of RTÉ did not seek to argue that the onus of proof did not lie on it and I am satisfied that the onus on an appeal on a point of law lies on the appellant and, irrespective of s. 34 (12), for the purposes of this appeal in those circumstances the onus of proof lies on RTÉ.

I am satisfied that RTÉ is entitled to pursue each of the grounds advanced by it in its application to this Court, which grounds essentially turn on the interpretation of the Regulations of 2000. There are no essential issues or facts which are in dispute in these proceedings and all that can be said is that what is in issue is the conclusions reached by the respondent Commissioner. This Court is in as good a position as the Commissioner was when he reached his decision. The essential issues of law raised in the appeal to this Court are those set forth in the grounding notice of motion herein at paras. (a) to (f) and are stated as follows:-

"(a) The respondent erred in law in holding that the Freedom of Information Act, 1997 applied to the records the subject of the said request by [the requester] having regard to the provisions of the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000 (S1. No. 115/2000) (the "Regulations of 2000") and, in particular, having regard to the particulars of Schedule 3 to the Regulations of 2000.

(b) The respondent erred in law in failing to uphold the appellant's refusal of the said request [the requester] having regard to the provisions of the Regulations of 2000 and, in particular, Schedule 3 thereof.

(c) The respondent erred in law in failing to hold that the records the subject of the request were outside the scope of the Freedom of Information Act, 1997 having regard to the provisions of Schedule 3 to the Regulations of 2000.

(d) The respondent erred in law in failing to hold that the records the subject of the request by [the requester] concerned the process of making editorial decisions concerning programme or programme schedule content which, without prejudice to the generality of the foregoing include preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions within the meaning of paragraph 4 of Schedule 3 to the Regulations of 2000.

(e) The respondent erred in law in failing to hold that the records the subject of the said request by [the requester] concerned the process of post-transmission internal review and analysis of programmes or schedules of programmes broadcast by the appellant for the purposes of paragraph 5 of Schedule 3 to the Regulations of 2000.
(f) The respondent erred in law and, in breach of the provisions of the Freedom of Information Act, 1997 in deciding that the records to which access had been requested by [the requester] should be released to him."

It is to be noted that a further ground specified in the notice of motion was not pursued on the appeal before this Court.

The application of the Act of 1997 to RTÉ and its associated companies is in a limited manner having regard to the terms of Article 2 (2) thereof which indicates that the Act is to be applied only as respects the functions of the body which are specified in Schedule 2. While an ordinary application of the terms referred to in Schedule 2 would encompass a wide numbers of matters, it is clear that a wide connotation cannot be given to each of these functions having regard to the fact that in accordance with Article 2 (3) of the regulations, these functions are deemed not to include any of the matters specified in Schedule 3 to the regulations.

I am satisfied that ostensibly the approach taken by the Commissioner to look at Schedule 3 was the correct approach, but the issue arises as to whether he correctly applied this approach in the exercise carried out by him. What is clear is that he considered that the role played by RTÉ to comply with its obligations under s. 18 of the Act of 1960 was a 'management' function. It must be said however, that if the role in question was one involving the functions specified in Schedule 3 that they must be deemed to be excluded from the term management in relation to the functions contained in Schedule 2. I consider that the deeming provision contained in Article 2 (3) of the Regulations of 2000 is such that it cannot be said, in applying a wide construction to Schedule 3, that one is failing to construe narrowly an exception to the provision in question. I am satisfied that the functions on Schedule 2 must by reason of the deeming provision be construed somewhat narrowly in the first place. Accordingly, the essential focus in these proceedings is and must be Schedule 3 and the various paragraphs thereof in assessing whether the functions giving rise to the data sought in these proceedings are functions encompassed by the terms of this schedule. If the functions in question can be broadly described as management functions but they entail the functions in Schedule 3 then they do not fall within the term of the management functions specified in Schedule 2.

I am satisfied that compliance with s. 18 of the Act of 1960 and the requirement of impartiality referred to therein necessarily involves the process of making editorial decisions concerning programme contents and must include programme planning and final pre-transmission editorial decisions. It is clear, furthermore, that insofar as information was gathered for RTÉ that this was a gathering of data with a specific purpose in mind, which purpose is not challenged in these proceedings, namely, the purpose of achieving the impartiality required by s. 18 of the Act of 1960. This of itself involves programme content purposes insofar as the balance in question was sought to be achieved. Furthermore, I am satisfied, in the context of the terminology contained in Schedule 3, that the process engaged in is one which can be stated to have included internal review and analysis of programmes or schedule of programmes. Insofar as counsel for the Commissioner has submitted that the drafting of the Regulations of 2000 may be somewhat unfortunate I believe that it is clear from the reading of the schedule that the matters sought to be excluded from Schedule 2 were programme related functions. I am satisfied that while the Commissioner looked at the word "management", that he failed to address same in the light of the restricted meaning obtaining to same having regard to Article 2 (3) of the regulations and terms of Schedule 3 itself. The use of words such as process of making editorial decisions clearly suggest a wide connotation but it is not restricted to the editorial decision itself but the broader context of the process of making such decisions. I am satisfied that I must conclude that in light of the broad ambit of Schedule 3 that the Commissioner has erred in law in his construction of the regulations when applied to the facts of the instant case. In all the circumstances, I must allow the appeal of the appellant on each of the grounds specified in paragraphs (a) to (f) of the notice of motion herein and I will accordingly set aside the decision of the Commissioner.

 

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