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John Burns of The Sunday Times and The Broadcasting Authority of Ireland (FOI Act 2014)

Case Number: 160032

Whether the BAI was justified in refusing access to records concerning monitoring/performance reports compiled on TV3 in 2015

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

The applicant made an FOI request to the BAI, by email, on 15 October 2015 (which he clarified the following day) for any monitoring/performance reports compiled on TV3 in 2015 and any correspondence in relation to these reports in 2015.

The BAI's decision of 4 December 2015 identified 18 records as relevant to the request. However, I need only refer to the six records specified in the applicant's internal review application (records 10, 12, 13, 14, 15, and 17). The BAI released the cover letter in record 12 but withheld the remainder of that record along with records 10, 13, 14 and 15. Amongst the exemptions relied on in relation to these records was section 29 (which is concerned with deliberative processes). The BAI said that the release of record 17 had been deferred "until such time as the process to which it relates is complete". On 11 December 2015, the BAI partially released record 17.

The BAI's decision on the applicant's internal review application of 14 December 2015 (as clarified on 15 December 2015) issued on 8 January 2016. It refused to release the relevant records. While it said it would release records 10, 12, 13, 14 and 15 once the deliberative process to which these records related was completed, which it expected to be complete on 28 January 2016, it said it would then have to consult with the relevant third parties under section 38 of the FOI Act.

On 21 January 2016, the applicant sought a review by this Office of the BAI's decision. Due to pressure of work, progress on this Office's review was delayed. On 4 August 2016, the BAI told this Office that it had completed a particular process and so was no longer relying on section 29. It said it was, accordingly, prepared to release records 10, 13, 14, and 15 (presumably subject to consideration of any views TV3 may have on such release).

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the BAI, TV3 and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

My review cannot extend to records that were created after receipt of an FOI request (15 October 2015 in this case, given that the request was made by email on that date). This is the case even where an FOI body has considered the records in its decision making process and where an applicant has sought an internal review in relation to such records.

Record 10 is a letter dated 19 October 2015 with attachments dated 16 October 2015.

Record 17 is a "Note to Compliance Committee", dated 20 October 2015. The elements of the "Note" that relate to the applicant's request have been released. Attached to the "Note" is various correspondence from broadcasters other than TV3, which does not fall within the scope of the request, and a letter from TV3, dated 17 June 2015. While the 17 June letter pre-dates the applicant's request, and is a copy of record 6 as initially considered in the BAI's decision, I do not consider the BAI to have held this letter as an attachment to record 17 until 20 October 2015.

I therefore find records 10 and 17 to fall outside the scope of the applicant's request and my review. I have not had any regard to their contents.

This review is, accordingly, confined to whether or not the BAI has justified its refusal of records 13, 14, 15 in full and the remainder of record 12 (except for one attachment comprising eight discs of content broadcast by TV3, which the applicant has told this Office he does not want).

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

The Commissioner has no remit to examine, or make findings on, the adequacy of the BAI's procedures. Accordingly, it is not appropriate for this Office to consider, or determine, how long a deliberative process should take or how long records should be found to be exempt under section 29; or to direct release of records by a specific date, regardless of whether deliberations have concluded by then. All of these are findings that the applicant argues this Office should have made if the BAI was continuing to rely on section 29.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. However, in a case such as this, involving the interests of other parties, it is important that those parties are given an opportunity to make submissions and that any such submissions received are taken into account in the final decision on the case.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

The Records At Issue

The details released to date disclose that the BAI sought information from TV3 for the purposes of content monitoring. The BAI says that the purpose of this monitoring is "to ensure that broadcasters licensed in Ireland comply with a range of statutory, contractual and policy provisions, including codes and rules." As I understand it, the BAI verifies compliance with the commitments outlined in the station's Programme Policy Statements/Indicative Programme Schedules, and with its own statutory requirements and codes, such as the BAI General Commercial Communications Code and the Children's Commercial Communications Code.
I do not consider myself to be in breach of section 25(3) by describing the records at issue in this review as follows:

Record 12 (i.e. the three remaining attachments) comprises (i) programme schedules, (ii) advertising logs and (iii) details of free or paid product placement. TV3 supplied these details to the BAI further to its request for such information for content monitoring purposes.

Record 13 is an internal BAI record i.e. a "check-in sheet". A "check-in" sheet appears to be a standard checklist of various material to be obtained for monitoring purposes.

Record 14 (and its copy, record 15) is also an internal BAI record i.e. the BAI's Content Monitoring Report.

Section 15(1)(d)
I accept that the programme schedules in record 12(i) is information that is already in the public domain. I find that it is, as argued by the BAI, exempt under section 15(1)(d) of the FOI Act.

Section 36(1)(b)
The BAI has not cited any provision of the FOI Act in relation to records 13, 14 and 15 other than section 29. However, it considers various exemption provisions, including section 36(1)(b), to apply to the remaining two attachments to record 12. TV3 argues that all of the records at issue are exempt under some or all of the various provisions of sections 36 of the FOI Act. I will firstly consider the application of section 36(1)(b) to the records at issue.

Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

The harm test in the first part of section 361(b) is that disclosure "could reasonably be expected to result in material loss or gain". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.

The BAI's arguments

The BAI says that records 12(ii) and (iii) "could be extrapolated to reveal the commercial strategy and arrangements the station has with third parties". It says that the advertising logs are "not just simply a record of advertisements broadcast in the daily schedule but a record of the station's on-air commercial activities", release of which "could provide full disclosure of TV3's commercial relationships, including potentially the types of commercial package". It also says that a broadcaster's commercial arrangements with a client include incentives or bonuses such as "not paid for" product placement. It makes other arguments in relation to record 12, on the lines of TV3's below.

TV3's arguments

TV3 argues that release of the record 12(ii) (the advertising logs), and the details in records 13, 14 and 15, would cause it difficulty in commercial negotiations if advertisers were aware that detailed information on scheduling advertisements was to be made publicly available. It says that it would suffer financial loss if advertisers were to move to other broadcasters that they consider to be more trustworthy with their advertising information. TV3 says that access to this information is restricted internally, such is its sensitivity.

TV3 also says that release would enable competitors to understand the needs and preferences of TV3 advertisers (time of day and type of programme they advertise in) allowing them to target those advertisers for future gain. It maintains that, overall, release of the details would "prejudice [TV3's] commercial position in the spot advertising market and offer vital operational and advertising placement insights for others to erode TV3's commercial position in the advertising market." Although these particular arguments were made in relation to section 36(1)(c), I consider them to be equally relevant to my consideration of section 36(1)(b).

In relation to the details of paid and non-paid product placement, as contained in record 12(iii), TV3 says that disclosure would allow other broadcasters to focus on securing commercial arrangements with paying advertisers and allow them to compete more aggressively for TV3 advertisers' spend. It says that the advertisers may be more likely to trade with other parties if there is a chance of the terms of their commercial arrangements with TV3 becoming public. Finally, it says that release would also allow other broadcasters a clear insight into the editorial direction of the programmes and allow them to more closely mimic the TV3 programmes to maximise the commercial performance while maintaining viewer engagement and loyalty and increase their audience share at the expense of TV3.

Conclusions

I can accept that release of any details that enable TV3's competition to target and attract its current advertisers could have financial repercussions for TV3, and could prejudice its competitive position. TV3 has argued that its advertising logs, as contained in record 12(ii), are restricted internally, such as their sensitivity.

On the other hand, one could argue that the details are already in the public domain since they have been broadcast. One might also argue that TV3's competitors would have means of analysing what is advertised by other broadcasters, and that they may already be able to assess the needs and preferences of TV3's advertisers in order to target them. However, having regard to the arguments made, it seems to me that release of the details could, at the very least, make it easier for competitors to analyse the needs of TV3's advertisers than might otherwise be the case, and/or confirm the accuracy of their own assessments of those needs. Furthermore, I accept that the details, although dating from late 2014/early 2015, are sufficiently current to be of use to TV3's competitors now.

I also accept that the details of paid and non-paid product placement, as contained in record 12(iii), meet the requirements of section 36(1)(b), in that their release could reveal details of TV3's commercial and financial arrangements with particular advertisers. I accept TV3's arguments that at least some of the details are seasonal and have ongoing relevance, while I also consider all of them to be sufficiently current to be of use to TV3's competitors at this point in time. Furthermore, while I understand that the BAI's Codes require broadcasters to inform viewers that there is product placement in a programme by use of the "PP" logo, and to provide the names of the companies that provided products and services included in the programme, I accept that the information in record 12(iii) is more detailed than what the BAI's codes require. I consider that it is reasonable to accept that details of TV3's paid and non-paid product placement would be of use to TV3's competitors when seeking to do business with those advertisers, and thus that release could prejudice TV3's competitive position.

Therefore, I accept that records 12(ii) and (iii) are exempt from release under section 36(1)(b) of the FOI Act.

The BAI considers that record 13 should be released. I do not consider the content of this record to be the kind of information that TV3 has said could cause it damage if released. The record simply gives the dates of the particular content that the BAI required for examination purposes. Having regard to the BAI's schedule of records and the released records, I consider the BAI to have already, effectively, placed these details in the public domain. Record 13 also discloses whether or not TV3 had supplied the requested content. It does not contain any views on whether any material so supplied was in breach of relevant rules or codes. Thus, to the extent that the record contains a small amount of further information about the material supplied by TV3 that is not already in the public domain, that information is of a general and non-critical nature. I do not consider record 13 to be exempt under section 36(1)(b).

The BAI is also of the view that record 14 (and its copy, record 15) should be released. It says that it does not disclose details of TV3's commercial arrangements, but is, rather, "a record of the initial views of the BAI's monitoring staff on viewing the relevant broadcast material having regard to the Code. In this regard, the Monitor listed particular broadcast items during various programmes that she thought may require further consideration by the Compliance Officer. This information is listed purely in the context of its potential non-compliance with the rules of the Code." The BAI confirms that none of the details listed ultimately proved compliant generally.

TV3's arguments against release of record 14/15 do not distinguish its content from that in its own detailed, internally generated, advertising logs. Having examined the content, I have no reason to find that it discloses details of TV3's commercial arrangements. Thus, I do not consider the details in this record to be of the kind that TV3 has said could cause it damage if released. However, as the record contains details of the BAI's initial assessment of TV3's non-compliance with requirements, I accept that the details in record 14/15 could reflect negatively on TV3. Given the low threshold required for me to find that release of a record "could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation", I am prepared to find that section 36(1)(b) applies to record 14/15.

Section 36(1)(c)
Section 36(1)(c) is a mandatory exemption applicable to "information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates". TV3 has claimed that this is applicable to record 13 (the only record I have found not to be exempt under section 36(1)(b)).

Although TV3 claims that section 36(1)(c) applies to record 13, its arguments do not explain why the information in it meets the requirements of section 36(1)(c). I have already found part of the information in this record to be effectively in the public domain, and the rest to be of a general nature. I do not consider record 13 to be exempt under section 36(1)(c). TV3 has not claimed that any other exemptions apply to record 13. I see no reason to consider it to be exempt and I find that it should be released.

Sections 36(2) and (3)

Section 36(2)
Section 36(2) provides that details to which section 36(1)(b) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; (c) the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment.

I do not consider any of these exceptions to apply in the case at hand; neither has the applicant argued that any of them are relevant. In relation to the application of section 36(2)(b) to the advertising logs in particular, it is relevant that TV3 has said that access to such information is restricted internally, a position supported by BAI in its submissions. Accordingly, I see no basis to consider the logs to comprise information of a kind that is generally available to the general public.

Section 36(3)
Section 36(3) provides for release of a record to which section 36(1)(b) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 I.R. 729, [2011] IESC 26), has indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. " Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

In favour of granting a request is the public interest in ensuring the openness and accountability of FOI bodies. This has to be balanced against the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies. The question I must consider is whether the public interest served by granting the request, and releasing information that I have found to be exempt under section 36(1)(b), sufficiently outweighs the public interest in protecting that information.

There is a public interest in ensuring openness and accountability in respect of the BAI's compliance functions. This public interest has been served to a certain extent by the material released to date. I accept that release of records 12(ii) and (iii) and 14/15 would further serve that public interest.

However, release of records 12(ii), (iii) and 14/15 would also disclose, essentially to the world at large, what I accept to be commercially sensitive information concerning TV3. In this regard, I feel it appropriate to distinguish records 12(ii) and (iii) from record 14/15. Records 12(ii) and (iii) contain internally generated TV3 records, which set out or could enable further insight into, TV3's commercial and financial arrangements with particular advertisers. Record 14/15, on the other hand, does not contain such information. Rather, it contains the initial impressions of the relevant monitoring body on TV3's non-compliance in relation to certain matters, none of which were ultimately found to be compliant generally.

In other words, I consider records 12(ii) and (iii) to rank higher on the scale of "commercial sensitivity" than record 14/15. I accept that more harm could be caused to TV3 by the release of records 12 (ii) and (iii) than by the release of record 14/15. Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest in withholding records 12(ii) and (iii) outweighs the public interest that access to them should be granted. However, I find that the public interest in withholding record 14/15 does not outweigh the public interest that access to it should be granted.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the BAI's decision. I affirm its refusal of access to the attachments to record 12, and I direct that records 13 and 14/15 be released.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester

 


Elizabeth Dolan
Senior Investigator