Case number: OIC-115177-N5L1P3
7 February 2022
In a request dated 28 July 2021, the applicant sought access to “all correspondence between Covering Climate Now (CCNow), either as an organisation or individuals representing the group, and RTÉ, sent within the last 12 months”.
In a decision dated 23 August 2021, RTÉ refused the request on the ground that the records sought are not covered by the FOI Act pursuant to the provisions of the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000 (the Regulations of 2000). On 6 September 2021, the applicant sought an internal review of that decision, following which RTÉ affirmed its refusal of the request. On 1 November 2021, the applicant sought a review by this Office of RTÉ’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 nature and contents of the records at issue, to the correspondence between RTÉ and the applicant as set out above, and to the correspondence between this Office and both RTÉ and the applicant on the matter. I have decided to conclude this review by way of a formal binding decision.
This review is concerned solely with whether RTÉ was justified in refusing the applicant’s request for correspondence between RTÉ and CCNow on the ground that the records sought are not subject to the FOI Act pursuant to the Regulations of 2000.
I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the records at issue and of the reasons for my decision is somewhat limited.
On 1 May 2000, RTÉ became a prescribed body for the purposes of the FOI under the Regulations of 2000. 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. 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 RTE in the context of matters specified in Schedule 3, they fall outside the scope of the Act.
In its submission to this Office, RTÉ specifically cited the exclusions at paragraphs 1, 2, 3 and 4 of Schedule 3. The matters captured by Paragraph 1 are the “gathering and recording in any form of news, information, data, opinions, on or off the record quotes or views from any person or source, for journalistic or programme content purposes, whether or not a programme is produced on the basis of such information, or is broadcast”.
The matters captured by Paragraph 2 are the “identification of any potential or actual source of information or material for the purpose of programme origination, whether or not such programme is produced or broadcast and without prejudice to the generality of the foregoing, shall include the consideration of the programme proposal submissions from internal and external sources”.
The matters captured by Paragraph 3 of are “the editing and storing of any material recorded by any means, whether written, aural, visual or otherwise, for the purpose of programme origination, whether or not such programme is produced or broadcast”.
The matters captured by Paragraph 4 are “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”.
The application of the FOI Act to records held by RTÉ was considered by the High Court in RTÉ v. the Information Commissioner  IEHC 113. That case involved records of data collected on the amount of broadcast time allocated to political parties during a general election campaign. In his decision, Ó Caoimh J. stated the following in respect of the application of the 2000 Regulations:
"It must be said however, that if the role in question was one involving the functions specified in Schedule 3 that they must be deemed to be excluded from the term management in relation to the functions contained in Schedule 2. I consider that the deeming provision contained in Article 2 (3) of the Regulations of 2000 is such that it cannot be said, in applying a wide construction to Schedule 3, that one is failing to construe narrowly an exception to the provision in question. I am satisfied that the functions in Schedule 2 must by reason of the deeming provision be construed somewhat narrowly in the first place. Accordingly, the essential focus in these proceedings is and must be Schedule 3 and the various paragraphs thereof in assessing whether the functions giving rise to the data sought in these proceedings are functions encompassed by the terms of the schedule. If the functions in question can be broadly described as management functions but they entail functions in Schedule 3 then they do not fall within the term of the management functions specified in Schedule 2.
In his application to this Office, the applicant argued that the requested information would fall, at least in part, under management, administration, and communication grounds as detailed in Schedule 2 of the Regulations of 2000. While he said he would accept that a certain amount of the requested documents may be considered to relate to programme related functions, he argued it seemed highly unlikely that RTÉ could join an international organisation, which provides the sorts of functions that CCNow does, without any management or administrative discussion of the event, or internal discussion of the impact of such a decision, and engage so totally in only programme related functions that he could be refused to receive even a schedule of records. He further argued that there seemed to be a clear public interest in the release of the documents.
In its submissions to this Office, RTÉ said that the purpose of CCNow, according to their website, is to assist news media ‘cover the defining story of our time with the rigor and urgency it deserves.’ It said they do this by highlighting what they view to be best practice in environmental journalism around the world with the aim of showing other media what has worked to engage the public. It said they also provide analysis of events and occasionally suggest experts worth interviewing. It argued that given their own raison d’etre, it is clear that CCNow exist to assist journalists in their work. It argued that it holds and receives emails from CCNow purely for the purposes of journalism and programme making.
RTÉ said the records at issue in this case were received by the Managing Editor, Current Affairs and RTÉ’s Executive Producer, Climate Coverage, whose role extends across both the News and Current Affairs divisions. It said the emails from CCNow to both were received as part of their editorial work as journalists and that they contain analyses of events written by experts as well as notifications of upcoming events, i.e. ‘diary markings’. It said that, in addition, there is some correspondence between the Managing Editor, Current Affairs, and CCNow highlighting RTÉ’s coverage.
In response to the applicant’s comments as set out in his application for review, RTÉ noted that the applicant did not seek internal records but specifically sought correspondence between CCNow either as a group or individuals and RTÉ with a twelve month period. It said, in any event, that there was no internal correspondence about either joining CCNow or involvement with them during the timeframe of the request. It said there is no fee involved for RTÉ to be a partner of CCNow, and that the organisation is purely a resource tool, one of many available to journalists. In relation to the release of a schedule of records, it argued that as the records are not subject to the FOI Act there is no obligation to create a schedule. It argued that such an approach is entirely consistent with the aims of the Regulations of 2000 and that it would defeat the purpose of the Regulations if, for example, RTÉ Investigates had to reveal (via a schedule) what records it holds in relation to some work thereby publishing ‘to the world at large’ what records they had and did not have.
Having examined the records at issue, I am satisfied that they can reasonably be described as relating to the gathering and recording in any form of news, information, data, opinions, on or off the record quotes or views from any person or source, for journalistic or programme content purposes”. It is important to note that such information is captured by paragraph 1 of Schedule 3 of the Regulations of 2000, regardless of “whether or not a programme (a) is produced on the basis of such information, or (b) is broadcast.” I find that the records at issue fall outside the scope of the FOI Act pursuant to Schedule 3, paragraph 1 of the Regulations of 2000. In light of this finding, it is not necessary to consider whether Schedule 3 paragraphs two, three and four also apply to the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ’s refusal of the applicant’s request for a copy of all correspondence between CCN and RTÉ on the ground that the information sought is excluded from the scope of the Act pursuant to the Regulations of 2000.
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.