Case number: OIC-108526-D5M9F3

Whether TG4 was justified in refusing access to information on the audience figures for each edition of Nuacht TG4 and 7 Lá for the period 1 January 2021 to 31 March 2021

23 March 2022

Background

In a request dated 20 April 2021, the applicant sought access to information on the audience figures for each edition of Nuacht TG4 and 7 Lá for the period 1 January 2021 to 31 March 2021. In a decision dated 19 May 2021, TG4 refused the request pursuant to the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (SI 115/2000), and under sections 30(1)(b) and (c), 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act. The applicant sought an internal review of that decision, following which TG4 affirmed its refusal of the request. On 3 June 2021, the applicant applied to this Office for a review of TG4’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 applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether TG4 was justified in refusing access to the information sought pursuant to SI 115/2000, or in the alternative, under sections 30(1)(a) and (b), 35(1)(a) and (b) and 36(1)(b) and (c) of the Act.

Analysis and Findings

On 1 May 2000, TG4 became a prescribed body for the purposes of the FOI Act under SI 115/2000. SI 115/2000 provides that TG4 is a public body for the purposes of the Act only as respects 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. However, the Regulations further provide that the functions specified in Schedule 2 shall be deemed not to include any of the matters specified in Schedule 3. In other words, if the records sought are held by TG4 in respect of matters specified in Schedule 3, the FOI Act does not apply to them.

Schedule 3, Paragraph 4 provides as follows:

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.

Paragraph 4 essentially excludes from the FOI Act records relating to the process of making editorial decisions concerning programme or programme schedule content. TG4 argued that the information at issue is covered by the matters specified in Paragraph 4 of Schedule 3. It said TG4 viewership figures are presented on a weekly basis by its Research & Audience Insights Manager to its Senior Management, Editorial and Scheduling Teams. It said the information, and other relevant information, is considered at weekly editorial meetings of its Content Commissioning and Scheduling group and informs decisions that are made in relation to preliminary programme proposal reviews, programme content, programme planning, final pre-transmission editorial decisions and scheduling slots for TG4 programmes, including Nuacht TG4 and 7Lá.

TG4 added that under its Memorandum of Understanding with RTÉ, its Director General holds monthly meetings with the Chief News Editor for Nuacht TG4 & 7Lá, which are also informed by the relevant information. It said editorial decisions are consequently made by the Chief News Editor which are in line with these discussions. 

In the case of Radio Telefís Éireann v the Information Commissioner [2002 No. 106 MCA], the High Court, when considering whether records of data collected on the amount of broadcast time allocated to political parties during a general election campaign was captured by Paragraph 4 of Schedule 3, found as follows:

“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 note the applicant’s argument that the information sought did not relate to editorial decisions as the programmes for which the information was sought have already been broadcast. However, this is not TG4’s argument. Rather, it has argued that the information is used in the context of making editorial decisions concerning future programme or programme schedule content. I accept that argument

Having regard to the nature of the information sought and to the explanation provided by TG4 of the uses to which the information is put, I find that it can reasonably be described as concerning the process of making editorial decisions concerning programme or programme schedule content and that it is captured by Paragraph 4. I find, therefore, that TG4 was justified in refusing the request on the ground that the FOI Act does not apply to the information sought, pursuant to SI 115/2000.

Having found that the FOI Act does not apply to the information sought, it is not necessary for me to consider the other exemptions claimed by TG4. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TG4’s refusal of the applicant’s request for information on the audience figures for each edition of Nuacht TG4 and 7 Lá for the period 1 January 2021 to 31 March 2021 on the ground that the information sought is excluded from the scope of the Act pursuant to SI 115/2000. 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator