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Mr X and RTÉ (FOI Act 2014)

Case Number: 160454

Whether RTÉ was justified in refusing access to records concerning the sponsorship, by Dominos, of RTÉ's screenings of the Big Big Movie (the BBM)

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 emailed an FOI request to RTÉ on 24 August 2016, in which he requested records relating to Dominos' sponsorship of RTÉ's screenings of the BBM. RTÉ's decision of 21 September 2016 refused access to the relevant records under sections 35(1)(b), 36(1)(b) and 36(1)(c) of the FOI Act. These provisions are concerned with information subject to a duty of confidence, commercially sensitive information, and information relevant to negotiations of the person to whom the information relates. The applicant sought an internal review of this decision on 28 September 2016. RTÉ's internal review decision of 18 October 2016 upheld its earlier refusal of the request. On 18 October 2016, the applicant sought a review by this Office of RTÉ's decision.

I have 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 RTÉ (including relevant aspects of a letter sent to RTÉ on 8 December 2016 by the agents for Dominos (the agents), which set out the company's views on the release of the withheld records); to a letter sent by this Office to the agents dated 20 December 2016 inviting any additional relevant comment they felt necessary and to which no reply was received; to correspondence between this Office 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. This is the case even where an FOI body has considered the records in its decision making process.

RTÉ's submission says that, of the four records initially considered relevant to the applicant's request, record 2 is entirely comprised of emails created after receipt of the request. The emailed request in this case was, presumably, received by RTÉ on 24 August 2016. However, the emails comprising record 2 are dated 25 and 26 August 2016. In any event, those emails concern the processing of the applicant's FOI request and were clearly created after it was received. Record 2 accordingly falls outside the scope of the applicant's request and my review. I have not had any regard to its contents.

This review is confined to whether or not RTÉ has justified its refusal of access to records 1, 3, and 4.

Preliminary Matters

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

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request. The agents' letter to RTÉ of 8 December 2016 outlined various concerns about why the applicant had made his request. Neither this Office when carrying out a review, nor an FOI body making a decision on a request, can take such concerns into account.

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 applicant says he was not given a schedule of relevant records. While the FOI Act does not require the creation of schedules, it is best practice to do so. Record 1 is an email from the agents to RTÉ relating to the arrangement between the two parties. Records 3 and 4 are unsigned copies of contracts between RTÉ and Dominos. As set out above, RTÉ relied on sections 35(1)(b), 36(1)(b) and 36(1)(c) in refusing to release these records.

Sections 35 and 36 of the FOI Act are two of the three provisions of the FOI Act that enable third party information to be withheld (the other being section 37 which applies to personal information).

Section 35(1)(b) is required to be applied to records the release of which would breach a duty of confidence owed by an FOI body to a third party. Records 3 and 4 contain a confidentiality clause, which I cannot describe in any detail because to do so would disclose part of the contents of an exempt record. While section 35(1)(b) may have relevance in this case, I have decided to consider the records initially under section 36(1)(b). In this regard, while section 36 enables the protection of third party commercially sensitive information, previous decisions from this Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests.

Section 36(1)(b)
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.

RTÉ's Arguments
I will refer only to the two most relevant arguments made by RTÉ as to why it considers section 36(1)(b) to apply to the records at issue. Firstly, it acknowledges that, in the normal course of business, RTÉ's competitors can try to attract the sponsors, by offering them better terms than RTÉ. It says that release of the records at issue will enable RTÉ's competitors to make targeted offers to the sponsors that, although presumably bettering RTÉ's, could be less advantageous to Dominos than they could otherwise have been. It maintains that this could prejudice Dominos' competitive position in the conduct of its business.

RTÉ also argues that release of the withheld records would prejudice RTÉ itself in any future similar negotiations. It considers that other sponsors, when negotiating with RTÉ, would be likely to rely on the terms agreed with Dominos as contained in the records at issue. RTÉ did not develop this argument further. However, I accept that it is reasonable to presume that, in such circumstances, the sponsors could achieve more favourable terms than might otherwise have been the case, to the detriment of RTÉ.

Conclusions
I accept that records 3 and 4 contain financial and commercial information relating to both RTÉ and Dominos, in that they disclose sums paid by Dominos to RTÉ, and various other terms agreed for the duration of the agreements. The records date from 2014 and 2015 and are, in my view, sufficiently current to have relevance today.

Having regard to RTÉ's arguments as set out above, I accept that release of records 3 and 4 would be of use to other sponsors with which RTÉ might do business, or to other broadcasters with which Dominos might do business. It is reasonable to accept that such release would enable those other parties to achieve terms that are less favourable to RTÉ/Dominos than would otherwise have been the case, and thus could have financial and commercial repercussions for RTÉ and/or Dominos. Accordingly, I accept that release of records 3 and 4 "could prejudice the competitive position[s]" of both RTÉ (in so far as its commercial activities are concerned) and Dominos and that RTÉ has justified its application of section 36(1)(b) to those records.

Record 1 is more general in content than records 3 and 4. It includes information that is arguably self-evident, as well as information that on its face does not appear to be particularly sensitive from the perspective of either RTÉ or Dominos. However, I accept that release of record 1 could place more information in the public domain, as to the arrangements between RTÉ and Dominos, than is otherwise available. I must also have regard to the low standard of harm that is necessary to find that release of information could prejudice a party's competitive position. Although a close call, I accept that the details in record 1 could be of general use to the competitors of both RTÉ and Dominos, and that its release "could prejudice the competitive position[s]" of the latter two organisations.

I find section 36(1)(b) to apply to the three records at issue.

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.

Section 36(3) - the Public Interest
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) ("the Rotunda case", 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 the request is the public interest in ensuring the openness and accountability of FOI bodies. In this regard, the agents' letter to RTÉ of 8 December 2016 referred to certain information "openly available to the market". RTÉ has confirmed that this information is not available to the general public. Therefore, the agents' contention is irrelevant to my consideration of the weight of the public interest in favour of release of the records at issue under the FOI Act.

The public interest in favour of release 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. Furthermore, RTÉ's submissions refer to sections 108 and 114 of the Broadcasting Act 2009. Section 108 provides that RTÉ's commercial activities "shall be operated in an efficient manner so as to maximise revenues, and be used to subsidise its public service objects". Section 114 sets out RTÉ's objects and associated powers. One object, as set out at section 114(1)(j), is "so far as it is reasonably practicable, to exploit such commercial opportunities as may arise in pursuit of the objects outlined [elsewhere in section 114(1)]." It seems to me, therefore, that the Broadcasting Act 2009 sets out "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law", i.e. that of preserving RTÉ's ability to exploit commercial activities and to maximise revenues accordingly. This must also be taken into account in considering the weight of the public interest against release of the withheld records.

The question I must consider is whether the public interest served by granting the request sufficiently outweighs the public interests, identified above, in protecting that information.

RTÉ is funded by public funds and by commercial revenue. There is a public interest in ensuring openness and accountability regarding how RTÉ generates its commercial income, which presumably impacts on the need to seek further public monies. I accept that this public interest would be served by release of the records at issue.

Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. Release of the records would disclose, essentially to the world at large, what I accept to be commercially sensitive information concerning Dominos. 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.

Release of the records would also disclose, essentially to the world at large, what I accept to be commercially sensitive information about RTÉ, and would impact on its ability to exploit commercial activities and maximise revenues. Not only is this contrary to the public interest recognised by the Broadcasting Act, it is also reasonable to take the view that placing RTÉ at a commercial disadvantage could increase its need to seek additional subvention (public monies).

At this point, I feel it appropriate to distinguish record 1 from the other records. It is evident from the foregoing analysis that I consider records 3 and 4 to rank higher on the scale of "commercial sensitivity" than record 1, and that I consider the release of records 3 and 4 likely to cause more harm to RTÉ and Dominos than the release of record 1. Accordingly, the public interest in protecting record 1 is lower than that in protecting records 3 and 4. Furthermore, while RTÉ's position is that all three records should be found to be exempt, its submissions nonetheless appear to reflect more concerns about the release of records 3 and 4 than about record 1.

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 3 and 4 is not outweighed by the public interest that access to them should be granted. However, I find that the public interest in withholding record 1 is outweighed by the public interest that access to it should be granted.

Section 35(1)(b)
I need only consider section 35(1)(b) in relation to record 1. Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law.

However, section 35(2) must be considered. This provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."

Record 1 was created by the agents. Furthermore, this is not a situation where Dominos were carrying out a service for RTÉ under a contract for services. Therefore section 35(2) is not applicable in this case.

I do not consider the confidentiality clause in records 3 and 4 to extend to information such as that in record 1. I do not, accordingly, consider that release of record 1 would constitute a breach of a duty of confidence that is provided for by the agreement between RTÉ and Dominos.

RTÉ also argues that release of any of the records would breach an equitable duty of confidence (a duty provided for "otherwise by law") owed by it to Dominos. In considering if there exists such a duty of confidence, I have regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41) which were confirmed in the Supreme Court decision in Mahon v Post Publications Ltd [2007] 3 I.R. 338:

"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

As already noted, I consider the details in record 1 to be general in nature. They are at the lower end of the scale of sensitivity, whether viewed in a commercial or any other context. Having regard to the terms of the confidentiality clause in particular, I do not consider the details in record 1 to have been imparted to RTÉ by the agents in circumstances importing an obligation of confidence. I find the second Coco test not to have been met in this case. Accordingly, I am not satisfied that release of record 1 would breach any equitable duty of confidence that may be owed by RTÉ to Dominos in the circumstances.

However, I find the names of three staff of the agents, and an email address of one of those staff, as contained in record 1, to be personal information about those individuals. I find this information to be exempt under section 37(1) of the FOI Act, and that none of the exceptions to section 37(1) (including the public interest balancing test at section 37(5)(a)) require their release.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary RTÉ's decision. I affirm its refusal of access under section 36(1)(b) to records 3 and 4 but I annul its application of sections 35(1)(b) and 36(1)(b) to record 1, which I direct be released subject to the redaction of the names of three staff of the agents and the email address of one of those staff.

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 not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.


Elizabeth Dolan
Senior Investigator