Case number: 160460
The applicant emailed an FOI request to RTÉ on 4 April 2016, in which he requested records relating to McDonalds' sponsorship of RTÉ's screenings of the BBM. RTÉ's decision of 20 July 2016 refused access to the relevant records under sections 35(1)(b), 36(1)(b) and 36(1)(c) of the FOI Act (provisions 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). Further to the applicant's application for an internal review of this decision, RTÉ's internal review decision of 18 October 2016 upheld its earlier refusal of the request. On 20 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 and the agents 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.
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 seven records initially considered relevant to the applicant's request, record 1 is entirely comprised of emails created after receipt of the request. I agree that record 1 is an email chain that concerns the processing of the applicant's FOI request and was thus created after the request was received. Record 1 accordingly falls outside the scope of the applicant's request and my review. I have not had any regard to its contents.
RTÉ says that record 6 is in the public domain, being a document published on the RTÉ website in 2015, and that it has no objections to its release. I take it, accordingly, that RTÉ will release record 6 and that I need not consider it further.
This review is confined to whether or not RTÉ has justified its refusal of access to the remaining five records.
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.
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). This Office takes 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.
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.
Records 2, 3, and 4 consist of emails between the agents and RTÉ regarding the negotiation of the sponsorship agreement. Record 5 is an unsigned a copy of the ensuing contract between RTÉ and McDonalds, while record 7 is a signed copy. As set out above, RTÉ relied on sections 35(1)(b), 36(1)(b) and 36(1)(c) in refusing to release these records.
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. 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. A record that is exempt under section 36(1)(b) may be released if certain circumstances apply (section 36(2) refers), or if the public interest in favour of its release outweighs the public interest that it be withheld (section 36(3) refers).
The arguments made by RTÉ in this case are the same as those it made in Case No. 160454, which concerned the applicant's request for records relating to Dominos' sponsorship of RTÉ's screenings of the BBM. I issued a decision on 2 February 2017 in relation to that case (available at this link http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-X-and-RTÉ-FOI-Act-2014-11.html ). My decision found that section 36(1)(b) of the FOI Act applied to the three records that had been withheld. I also found that the exceptions to section 36(1)(b), as provided for in section 36(2) of the FOI Act did not apply to the records. Finally, in considering the public interest test at section 36(3), I directed that two of the withheld records, which I considered to rank higher on the scale of "commercial sensitivity" than the third, should be withheld in the public interest.
I consider the commercial sensitivity of all of the records in this case to be on a par with the commercial sensitivity of the two records I directed be withheld in Case No. 160454. In the circumstances, it is appropriate for me to adopt the analysis I set out in Case No. 160454 for the purposes of my decision in this case. Accordingly, I find that section 36(1)(b) applies to the five withheld records in this case; that none of the exceptions in section 36(2) apply; and that the public interest that access should be granted to the records does not outweigh the public interest in withholding them.
In the circumstances, there is no need for me to consider the other exemptions relied on by RTÉ in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ's decision to refuse to grant access to the withheld records.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.