Case number: OIC-102338-Y8D7Q1
8 April 2022
In a request dated 9 November 2020, the applicant sought access to “all communications relating to an application by RTÉ for a proposed amending regulation (regulation 136) to the RTÉ Superannuation Scheme, to include communications between the Department and RTÉ, DPER and New Era and any other third party that has made representations or observations in relation to this request by RTÉ.” In a decision dated 11 December 2020, the Department identified 26 records and it refused access to these records under section 29(1) of the FOI Act (deliberations of FOI Bodies). On 17 December 2020, the applicant sought an internal review of that decision. On 13 January 2021, the Department varied its original decision. The Department released a number of records, which had previously been refused with the redaction of personal contact details from some of these records under section 37(1) of the FOI Act. The Department refused access to the remaining records under sections 29(1), 35(1)(a) (confidential information) and section 36(1)(c) (commercially sensitive information) of the FOI Act. On 15 January 2021, the applicant sought a review by this Office of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant, the Department the NTMA, RTÉ and the Trustees of RTÉ Superannuation Scheme. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, this Office provided the applicant and the Department with an opportunity to make submissions. In his submissions to this Office, the applicant stated that he is not requesting a review of the Department’s decision to redact certain information under section 37(1) of the FOI Act. Accordingly, the Department’s decision to redact information under section 37(1) of the FOI Act from records 1, 2, 3, 9 - 15 and 25 falls outside the scope of this review. The Department released records 4 - 8, 16 - 18, and 21 to the applicant at internal review stage or during the course of this Office’s review. Those records will therefore be excluded from this review. Record 20 was created after the date the applicant made his FOI request, it also falls outside the scope of this review.
This Office also provided the NTMA, RTÉ and the Trustees of RTÉ Superannuation Scheme with an opportunity to make submissions. In its submissions, RTÉ contended that the records at issue are also exempt under sections 30(1)(b) and (c) and 36(1)(a) and (b) of the FOI Act and I have also considered those provisions in this review.
Accordingly, the scope of this review is confined to whether the Department was justified in refusing access to records 19, 22, 23 and 24 under sections 29(1), 30(1)(b) or (c), 35(1)(a), or 36(1)(a) or (b) or (c) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
I can say that the records concern the question of whether the Minister should approve a change proposed by RTÉ to the regulations governing the RTÉ Superannuation Scheme to require the Scheme to cover certain of its own administration expenses. The fact of the proposal itself is in the public domain, as are the reasons it is being sought. The Department asked NewERA to provide observations and advice on the proposal. Records 22, 23, and 24 contain NewERA’s advice and record 19 contains the Department’s consideration of NewERA’s advice. While the records contain a small amount of information in relation to RTÉ, the main focus of the records is on the RTÉ Superannuation Scheme.
Section 29 – Deliberations of Public Bodies
Section 29(1) provides that a head may refuse to grant an FOI request: (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met.
The applicant states that while he made this FOI request in his own name, it was made on behalf of the RTÉ Retired Staff Association (RTÉSA), which represents the 1800 members of the RTÉ Defined Benefit Pension Scheme. He states that his FOI request relates to a request by RTÉ to the Minister to change the rules of the RTÉ Superannuation Scheme, which would have the effect of imposing a levy on the pension savings of RTÉ employees. He contends that to use “ongoing deliberative process” as a cloak to conceal a process from 1800 RTÉ pensioners would result in secret decision making with no opportunity for evidence based rebuttal. He also contends that section 29 of the FOI Act does not permit the refusal of the factual information contained in the records which were refused in their totality.
The Department states in order to progress the consideration of RTÉ’s request, its officials asked NewERA to provide advice on the proposal. It states that NewERA’s core role is to provide financial and commercial advice to Government Ministers and Departments in relation to their shareholdings in State-owned companies. The Department states that the decision making process in relation to this matter is still ongoing and will not be concluded until the Minister and the Minister for Public Expenditure and Reform have concluded their deliberations.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. I am satisfied that the records contain opinions, advice and recommendations provided by NewERA to the Department to assist it in its consideration of RTÉ’s request.
I have considered whether any of the exceptions to section 29(1) which are contained in section 29(2) apply to the records. Section 29(2)(b) provides that section 29(1) does not apply insofar as the records contain factual information. Section 2 of the Act states that “factual information” includes information of a statistical, financial, econometric or empirical nature, together with the analysis thereof. While there are some references to financial information in the records, much of this information consists of projections and estimates by New Era. In my view, the records contain an evaluation or weighing up of RTÉ’s proposal by New Era as opposed to factual information. I am satisfied, therefore, that the records concerned contain matter relating to the deliberative processes of the Department. However, this is not the end of the matter because, as outlined above, I must also consider whether the release of the records would be contrary to the public interest.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Indeed, section 11(3)(c) of the FOI Act points to “the need to inform scrutiny, comment and review by the public of the activities of FOI bodies…” Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The applicant states that RTÉ, as a state company, has the sole right to request changes to the rules of the scheme, which was established by the Broadcasting Act 1960 as amended. He states that the RTÉ pensioners who contributed their pension savings over 40 years have no right to consultation in any form relating to such fundamental aspects of their pension savings. He states that most other semi-state funded pension schemes operate under similar legislation. He states that this case is an important precedent on a matter of “public interest” to tens of thousands of state employees. According to the applicant, not even the Trustees of the RTÉ Scheme are privy to the communications contained in the records. The applicant contends that almost all Semi State company pension schemes are subject to the same Ministerial control. He states that how Ministers exercise this control is of major public interest to the tens of thousands of retired semi state employees.
The Department contends that the premature release of the information could contaminate the decision-making process and provide an opportunity for undue intrusion into the decision-making process from stakeholders and parties with vested interests. The Department states that the purpose of the decision on this request was to uphold the integrity of the decision-making process, and not to undermine the trust and confidence between the public bodies involved in the matter.
As outlined above, the existence of the proposal itself is in the public domain, as are the reasons it is being sought. There appears to be information on NTMA/ NewERA’s position in relation to the measure in the public domain. I note in this regard that the RTÉSA published a letter online, which was sent to the Minister for Public Expenditure and Reform, setting out NTMA/NewERA’s view.
It appears to me that the relevant stakeholders have already made their views known to a certain extent. It is not clear to me how release of the records could contaminate the decision making process. Nor is it clear to me that release of the records would undermine trust and confidence between the public bodies involved in this matter. I have considered whether granting access to the records would be contrary to the public interest by reason of the fact that the requester would thereby become aware of a significant decision that the Department proposes to make. The Department’s position is that the decision making process in relation to this matter is still ongoing. Having examined the records carefully and having considered the Department’s submission that the decision making process is still ongoing, I am satisfied that the applicant would not become aware of a significant decision that the Department proposes to make by release of the records. In conclusion, I find that the Department has not shown that the release of the relevant records would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.
Section 35 – Information obtained in confidence
Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. Before I consider the applicability of section 35(1)(a), I must consider whether section 35(2) applies. Section 35(2) provides that section 35(1) shall not apply to a record which is prepared by a member of the staff of an FOI body 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 a member of the staff of an FOI body or service provider.
This Office must therefore be satisfied that a duty of confidence is owed to a party other than an FOI body in order in order for an exemption under section 35(1)(a) to apply to the records.
Record 19 is a draft submission prepared by the Department, which is an FOI Body. Records 22, 23, and 24 were prepared by the NTMA, which is a partially included agency. This means it is only an FOI body for certain of its functions. Accordingly, I must consider whether the NTMA (as NewERA) communicated with the Department in respect of functions that fall within its position as an FOI body.
Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1 Part 1(w) provides that section 6 does not include a reference to the NTMA insofar as it relates to records-
(i) relating to or received from a public body specified in Part 2 of this Schedule that is a commercial entity,
(ii) concerning the performance of its functions under Part 2 of the NTMA (Amendment) Act 2000, other than in relation to records concerning the general administration of those functions, or
(iii) concerning the terms and conditions on which a person holds a position as a member of staff of the Agency other than when that information is contained in records in summary or collective form such that individuals cannot be identified from the record;
Schedule 1 Part 1(x) provides that section 6 does not include a reference to the NTMA, NAMA, the National Pensions Reserve Fund Commission and the National Development Finance Agency insofar as it relates to records concerning-
(i) investors or potential investors in any security issued by the Minister for Finance or any of these bodies or in any project, fund or other investment managed or promoted by any of these bodies or in which any of these bodies is an investor,
(ii) companies, firms, funds or any other entities with or in which any of these bodies have invested or could potentially make an investment,
(iii) purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by any of these bodies,
(iv) market counterparties or potential market counterparties of any of these bodies,
(v) sellers of assets acquired or which may be potentially acquired by any of these bodies or by any company, firm, fund or other entity in which any of these bodies is an investor;
Records 22, 23 and 24 do not relate to a public body specified in Part 2 of Schedule 1, as RTÉ is not listed in this part of the FOI Act. As set out in the NTMA’s submission, the role of NewERA is to provide financial and commercial advice to Ministers of the Government in relation to certain state bodies. The records do not concern the performance of the NTMA’s functions under Part 2 of the NTMA (Amendment) Act 2000, which concerns the performance of the State Claims Agency’s functions, nor do they concern terms and conditions of a staff member of the NTMA. Furthermore, records 22, 23 and 24 do not relate to investors in any security issued by the Minister, companies in which the NTMA has invested, purchasers of loans from the NTMA, market counterparties of the NTMA or sellers of assets acquired by any of the bodies. The records do not therefore fall within the exclusions relevant to the NTMA.
I note that when requesting submissions from the Department, the Investigator specifically asked the Department to explain the capacity in which the NTMA provided the memos at issue. It did not do so. From careful consideration of the documents, it is my view that the NTMA provided records 22, 23 and 24 to the Department in its capacity as an FOI Body. As such, I am of the view that the NTMA has not identified a body other than an FOI body to which a duty of confidence is owed.
For completeness, I have also considered whether RTÉ is an FOI body for the purposes of the records and whether a duty of confidence could be owed to it. RTÉ became a prescribed body for the purposes of the FOI under the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2.) Regulations 2000 (“the 2000 Regulations”). The Regulations provide that RTÉ is a public body for the purposes of the Act only in respect of certain functions described in Schedule 2, namely management, administration, finance, commercial, communications, and the making of contracts of, or for, service with any person, company or other body. RTÉ is not an FOI body for the purposes of programme related functions. The records deal with administrative/ financial matters. I am satisfied that RTÉ is an FOI Body for the purposes of the records at issue.
In conclusion, I find that section 35(2) applies to records 19, 22, 23 and 24 and that section 35(1)(a) of the FOI Act does not, therefore, apply.
Section 36 – Commercially Sensitive Information
The Department refused access to records 19, 22, 23 and 24 under section 36(1)(c) of the FOI Act. However, in its submissions to this Office, RTÉ contends that these records are also exempt from release under subsections (1)(a) and (1)(b) of section 36. I will consider whether the records are exempt under either section 36(1)(a) or (b) or (c) of the FOI Act.
Subsection (1)(a) provides for the refusal of a request where the record sought contains trade secrets of a person other than the requester. This Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication.
RTÉ states that the information it provided to the NTMA (as NewEra) and the Department which is either included in the records at issue or which provided the basis for the analysis is a trade secret to RTÉ. It states that the financial data and projections are only known to senior members of the Finance Department and some senior executives. It states that the information could not be independently acquired by either NewERA or by its competitors. RTÉ states that its concern is that the release of the records would result in the release of information which could, directly or indirectly, expose financial plans and proposals or analysis which can be ‘reverse engineered’ to establish the original confidential data.
As outlined above, the main focus of the records is on the RTÉ Superannuation Scheme. The records contain a small amount of information in relation to RTÉ. However, having regard to the content of the records, it is not clear to me that release of information in the records could be ‘reverse engineered’ to reveal RTÉ’s trade secrets. I have not been able to identify any information that meets the criteria for a trade secret. I find that section 36(1)(a) of the FOI Act does not apply to the records.
Subsection (1)(b) provides for the refusal of a request where the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
RTÉ states that as the records provided to the Department and NewERA contained commercially sensitive financial information, any analysis based on them would still be commercially sensitive, as the data is the same. RTÉ states that its concern is that commercially sensitive information could be released or extrapolated from records released and this would allow competitors to look at RTÉ’s financial or commercial plans and use that to their own advantage at a cost to RTÉ.
I accept that RTÉ may have provided financial or commercial information to the Department and NewEra to consider in the context of its proposal. However, it seems to me that the records do not contain detailed financial or commercial information in relation to RTÉ. As mentioned above, the focus of the records is the RTÉ Superannuation Scheme and the implications for the Scheme if the proposal is accepted. I am not satisfied that commercially sensitive information could be extrapolated from the records that would allow competitors to look at RTÉ’s financial or commercial plans. I find that subsection 1(b) does not apply to the records.
Subsection (1)(c) provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
The applicant states that he previously made an FOI request to the Department of Communications and DPER relating to an application by RTÉ for a pension increase and all communications and deliberations between these Departments, RTÉ and the NTMA/NewERA were released. He states that based on documents previously released, which include detailed actuarial reports and pension reports and the wide availability of annual financial reports of RTÉ and the RTÉ Pension scheme, there is no confidential or commercially sensitive information contained in these documents.
The Trustees of the RTÉ Superannuation Scheme state that the NewERA documents have been inaccurately described as being commercially sensitive and the records should be released in the interests of openness and transparency.
The Department states that in light of the importance of this proposal for the RTÉ Pension Fund and the financial impact on RTÉ itself, these records should continue to be treated as confidential and commercially sensitive until such time as the Minister and the Minister for Public Expenditure and Reform have issued their final decision. The Department also points out that the advice provided by NewERA is marked “Strictly Confidential and Commercially Sensitive for the Purposes of the FOI Act.”
The NTMA states that it is essential that State Bodies continue to provide confidential and commercially sensitive information to NewERA and the disclosure of the information contained in these records could adversely affect the provision of this information by State bodies to NewERA, given the understanding and expectation as to how NewERA holds their information.
RTÉ states that the proposed change to Regulation 136 is regularly discussed at meetings between RTÉ, the Department and NewERA. It states that until a final decision is made by the Minister, there remains the likelihood of further issues arising, e.g. questions from the Minister or her advisers. It states that to release records which form part of those negotiations while they are still underway would prejudice those talks, as all the bodies involved would effectively have to assume they are negotiating in public. It states that this would inhibit a free exchange of information and views during the process.
Where records are marked “Confidential” or “Commercially Sensitive”, this may be a relevant consideration. However, the Commissioner takes the view that such labelling is not sufficient, in the absence of other evidence, to establish that the records are confidential or commercially sensitive.
In this case, I am not satisfied that the decision making process in relation to whether to change the Regulations is a negotiation. I understand that RTÉ has the right to request changes to the rules of the RTÉ Defined Benefit Pension and the Minister, along with the Minister for Public Expenditure and Reform, controls any changes to the Regulations. I also understand that the RTÉ Retired Staff Association does not have any power to make any decisions regarding the Scheme or to make demands. Further, the Trustees have acknowledged RTÉ’s entitlement to make the amendment and have agreed to comply with the new Regulation once approved. On this basis, I am not satisfied that the Department has identified contractual or other negotiations which could be prejudiced by release of the records, I find that the Department was not justified in refusing access to the records under section 36(1)(c) of the FOI Act. Given this finding, I am not required to consider sections 36(2) or (3).
Section 30 Functions and negotiations of FOI Bodies
The Department did not rely on section 30 of the FOI Act in refusing access to records 19, 22, 23 and 24. However, in its submissions to this Office, RTÉ contends that these records are also exempt from release under subsections (1)(b) or (1)(c) of section 30. On this basis, I will consider whether the records are exempt under either section 30(1)(b) or (c) of the FOI Act.
Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1)(b) is subject to a public interest test under section 30(2).
Where an FOI body relies on section 30(1)(b), it should identify the potential harm to the performance by the body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI Body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard of section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.
RTÉ states that the changes to the superannuation scheme are one element of a Stability Agreement that is still underway. It states that as well as the trustees of the scheme, RTÉ has engaged with others impacted by cost cutting measures, principally the staff. It states that these engagements are ongoing and likely to continue for some time. It states that section 30(1)(b) specifically mentions industrial relations and staff management both of which are relevant to this review. RTÉ states that the requested records are part of an industrial relations process with staff and its concern is that the release of sensitive data could negatively impact on this process. It states that this would arise because sensitive information about a part of the overall process would be in the public domain.
As outlined above, the fact of the proposal itself is in the public domain as are the reasons it is being sought. RTÉSA has published correspondence online to the Minister in which it expresses criticism of the proposed amendment. In light of the information already in the public domain, I am not satisfied that release of the records at issue could reasonably be expected to have a significant adverse effect on RTÉ’s functions relating to management (including industrial relations and management of its staff).
Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1)(c) is subject to a public interest test under section 30(2).
It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records that disclose positions taken etc. for the purposes of negotiations.
RTÉ contends that the release of the records would disclose (directly and indirectly) positions taken by RTÉ in negotiations both with NewERA and its staff. It states that while this negotiating process is still underway, the release of any record which could negatively impact on it should be avoided.
For the reason I have already set out above, I am not satisfied that the decision making process in relation to whether to change the Regulations is a negotiation. I understand that RTÉ has the right to request changes to the rules of the RTÉ Defined Benefit Pension and the Minister, along with the Minister for Public Expenditure and Reform, controls any changes to the Regulations. I note that when the proposal was made, the Department asked NewERA to provide observations and advice on the proposal, records 22, 23, and 24 contain NewERA’s advice and record 19 contains the Department’s consideration of NewERA’s advice. In my view, release of these records could not reasonably be expected to disclose positions taken by RTÉ in negotiations with NewERA or its staff. I find that the records are not exempt under section 30(1)(c) of the FOI Act. In light of this finding, it is not necessary for me to consider the application of section 30(2).
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that Department was not justified in refusing access to records 19, 22, 23 and 24 under sections 29(1), 30(1)(a) or (b), 35(1)(a) or 36(1)(a) or (b) or (c) of the FOI Act and I direct release of these records to the applicant.
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.