Case number: OIC-110279-R9K8X0
In a request dated 13 April 2021, the applicant sought access to records (to include memos, reports, briefing documents, faxes, messages on social messaging apps, text messages, letters, emails, board minutes, invoices and expense claims) regarding the refurbishment of RTÉ studios 3 and 5 as well as the revamp of RTÉ’s “Prime Time” programme.
On 11 May 2021, RTÉ refused the applicant’s request, on the ground that the FOI Act only applies to RTÉ in respect of “non-programme related functions”, pursuant to the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2.) Regulations 2000 (“the 2000 Regulations”). It said that the records sought were programme-related and thus fell outside the scope of the Act by virtue of Schedule 3.4 of the 2000 Regulations, which excludes from the Act “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”.
On 13 May 2021 the applicant sought an internal review of RTE’s decision. On 16 June 2021, RTÉ upheld its original decision in respect of the request. On 13 July 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 correspondence between RTÉ and the applicant, and to correspondence between this Office and both RTÉ and the applicant on the matter.
This review is concerned solely with the question of whether RTÉ was justified in its decision to refuse the applicant’s request on the ground that that the records sought fall outside the scope of the FOI Act by virtue of the provisions of the 2000 Regulations.
The 2000 Regulations provide that the FOI Act applies to RTÉ only in respect of certain functions set out in Schedule 2, namely
However, the Regulations also provide that the functions specified in Schedule 2 shall be deemed not to include any of the matters specified in Schedule 3.
Schedule 3.4 provides for the exclusion of the following:
“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”.
In its submissions to this office, RTÉ provided the following background information:
“The set is a vitally important part of every studio programme. Sets are designed to create a tone for the programme - the way it looks and appears on camera (and therefore on television) are the crucial elements. Sets vary depending on the programme and the way the editors/producers want it to appear, i.e. it is an editorial decision how a set should look … Each set is individual to create a programme ‘identity’ and to suit the style of the broadcast.
All programmes need a ‘refresh’ after a number of years. The ‘look’ of a programme is one of several crucial factors for any television broadcast when it comes to this refresh. It involves things like graphics, colour choice, lighting, background and details such as whether there should be a desk and if so what should it look like, should there be individual seats or a couch and if so what should they look like? While there is obviously a physical set (rostra, seats, desks) for each programme, much of the background is often digitally created. This is also the case with the Prime Time set.
Prime Time comes from Studio 5 in Donnybrook. This is a multi-programme studio which itself was updated, going on air in 2019. It is not only for use by current affairs, it is often used by Sport and was most recently in use for the Olympics. News bulletins and The Week In Politics programme come from Studio 3 which was refurbished in 2018 and went on air in January 2019. RTÉ did decide to announce the cost of that studio refresh – over €1.4m …”
In relation to Prime Time, RTÉ added that a decision was taken last year by the Head of News together with the Managing Editor, Current Affairs, to conduct a programme refresh. It described that decision as an editorial decision relating to programme planning. It said the refresh did not just involve a new look for the programme – it was a substantial overhaul. It said it included the appointment of a new editor and new presenters, all of these being editorial decisions about planning a programme.
It argued that records relating to this programme refresh including the cost of the set are not subject to the FOI Act arising from the 2000 Regulations because the decisions to undertake a programme refresh and how the programme should look were editorial decisions relating to programme planning It further argued that records relating to programme planning is not limited to planning which story should appear on air and that the costs related to programme planning arise from final pre-transmission editorial decisions.
RTÉ referred to the ruling of the High Court in RTÉ v The Information Commissioner wherein
Ó Caoimh J. found, stated the following;
“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 on Schedule 2 must by reason of the deeming provision be construed somewhat narrowly in the first place”.
“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.”
It argued that with this broader context as set out by the Courts, the records at issue in this case are outside the scope of the Act.
In her submissions, the applicant argued that, on the contrary, the decisions to refurbish RTÉ studios 3 and 5, and to refresh the “Prime Time” programme, did not constitute editorial decisions concerning programme or programme schedule content, such as to bring the decisions within the scope of Schedule 3.4 of the 2000 Regulations. The applicant argued that to classify money spent on a television set as an editorial decision because the decision was made by editorial staff was neither justifiable or credible. She argued that, put simply, spending money on a television studio was a financial decision regardless of who made the decision. Furthermore, the applicant stated that RTÉ’s comparison of the “Prime Time” set with the front page of a newspaper was not comparing like with like and was disingenuous. The applicant indicated her view that a television studio could only be compared to the front page of a newspaper in terms of appearance and not content.
In its submissions to this Office, RTÉ addressed the above argument of the applicant, stating that, contrary to her position, the records at issue related entirely to editorial decisions about what a programme looked like. RTÉ argued that, while this did involve finance, it was related to programme making and as such did not fall within Schedule 2 of the 2000 Regulations. Returning to its comparison with the front page of a newspaper, RTÉ stated that there were a number of editorial decisions on a newspaper that were analogous to a decision relating to the refurbishment of a studio or set, such as whether there should be a colour picture on the front page and what colour the masthead should be. RTÉ stated that these were editorial decisions that reflected the way a newspaper appeared and, in the same fashion, this applied to television programmes, in respect of such considerations of the way that a programme should look, what its graphics should look like, what colour seats should be used, etc. RTÉ argued that these were editorial decisions that reflected the way a programme looked.
I have considered this matter carefully, and have had due regard to the arguments of both parties. Moreover, I have considered the decision of the High Court in RTÉ v The Information Commissioner, and am cognisant of both the provisions of the 2000 Regulations and the explanatory note accompanying same. In relation to Schedule 3.4 of the 2000 Regulations, I note that this provision excludes from the scope of the FOI legislative regime editorial decisions concerning programme or programme schedule content, and goes on to specify that preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions are among the matters so excluded.
It is worth noting at this stage that the applicant’s request appears to be quite broad, in so far as it sought access to records regarding the refurbishment of RTÉ studios 3 and 5 as well as the revamp of RTÉ’s “Prime Time” programme. RTÉ’s position is that all relevant records are excluded from the scope of the Act, pursuant to Schedule 3.4 of the 2000 Regulations.
Given the nature of the request, it is apparent to me that RTÉ are likely to hold certain relevant records that relate to one or more of its functions as described in Schedule 2, such as management and finance. The question I must consider is whether Schedule 3.4 serves to exclude all such records from the Act. The effect of Schedule 3.4 is that regardless of the fact that the records may relate to one or more of the functions in schedule 2, it does not apply to records relating to the process of making editorial decisions concerning programme or programme schedule content, including preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions.
In essence, RTÉ’s argument is that all of the records related to programme planning and are captured by Schedule 3.4. In my view, this is an unsustainable argument. As I have outlined, schedule 3.4 excludes records relating to editorial decisions concerning programme content or programme schedule content. It seems to me that programme planning is concerned with the programmes themselves and does not extend to such a broad concept as all records relating to the refurbishment of a studio from where those programmes are broadcast, notwithstanding the fact that a decision to refurbish a studio may well require editorial input. For example, I find it difficult to see how the costs associated with, say, the installation of lighting in a Studio from which a number of programmes may be broadcast, could reasonably be argued to relate to editorial decisions concerning programme content or programme schedule content, preliminary programme proposal reviews, programme planning or final pre-transmission editorial decisions.
Moreover, I consider that, by any reasonable measure, the decision to spend considerable sums of money on the refurbishment of studios and the refreshing of a programme comes within the ordinary meaning of a management function, and in all likelihood a finance function also, albeit one that was likely reached with significant input at editorial level, and albeit that the determination that the studios and/or the programme required upgrading may have originated at editorial level.
This is especially the case in circumstances where, as RTÉ outlined in its submissions, the cost of the studio refurbishments at issue was more than €1 million (the refurbishment of studio 3 costing some €1.4 million in 2019). In circumstances where RTÉ is partly funded from the public purse, I find it difficult to accept the proposition that the decision to undertake so costly and sizeable an overhaul was a solely editorial decision.
In conclusion, I find that RTÉ was not justified in refusing the request in its entirety on the ground that all of the records sought fall outside the scope of the FOI Act by virtue of the provisions of the 2000 Regulations. Nevertheless, I do not consider it appropriate to simply direct the release of the records in circumstances where this Office has not had sight of any relevant records. Rather, I consider it appropriate to annul the decision of RTÉ in this matter and remit the matter back to RTÉ for consideration afresh.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of RTÉ to refuse the request on the ground that the records sought fall outside the scope of the Act and remit the request back to RTÉ to be considered anew.
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 applicant 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.