Decision
Mr W and Radio Teilifís Éireann
From Office of the Information Commissioner (OIC)
Case number: 110196
Published on
From Office of the Information Commissioner (OIC)
Case number: 110196
Published on
Whether RTÉ was justified in its decision to refuse access to additional records relating to a proposal to license television news reports to members of National Newspapers of Ireland and/or any other party on the grounds that no further records exist or can be found
10 January 2014
In July 2011, the applicant submitted an application to RTÉ seeking all documents and records relating to a proposal by RTÉ to license television news reports to members of National Newspapers of Ireland (NNI) and/or any other party. On 19 July 2011, RTÉ refused the application on the basis that the records sought related to the deliberative process of a trial which had not been completed and that the release of the records at the early stage of the process could prejudice the conduct or outcome of contractual or other negotiations. In September 2011, RTÉ upheld its original decision following a request for an internal review, and in October 2011, the applicant wrote to the Office of the Information Commissioner seeking a review of RTÉ's decision.
During the course of the review RTÉ released all records it had identified as coming within the scope of the applicant's FOI request. However the applicant did not accept that all relevant records had been released. On 19 June 2012, Mr Maurice Kiely, Investigator in this Office, wrote to the applicant and outlined his preliminary view that RTÉ had released all relevant records in this case and invited a response within three weeks. On 12 July 2012, the applicant outlined why he considered that other relevant records should exist. Following further telephone and written contacts, the applicant indicated that a formal decision was required. Accordingly, I have now decided to conclude this review by way of a formal binding decision. In carrying out my review, I have had regard to the correspondence between RTÉ and the applicant as detailed above, to correspondence between this Office and the applicant's solicitor and to correspondence between this Office and RTÉ. I have also had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether or not RTÉ was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
While no section of the FOI Act has been cited, RTÉ appears to be relying on section 10(1)(a) of the FOI Act in refusing access to additional records. Section 10(1)(a) provides as follows:
"A head to whom a request under section 7 is made may refuse to grant the request if
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken............"
The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website at www.oic.ie).
RTÉ has explained that when the FOI request was received, internal searches were initially conducted by RTÉ Publishing (incorporating RTÉ Online) onthe basis that the request related to a proposal from RTÉ Publishing to license television news reports to members of the NNI. Searches were conducted os all electronic files held by RTÉ Publishing and of all RTÉ Publishing emails using the search terms "National Newspapers of Ireland". All of the relevant records located have since been released. RTÉ described the records in question as a powerpoint format proposal as presented to NNI, internal papers relating to the development of the proposal, comprising research material and estimates of costs of various options for the delivery of video feeds to newspapers, email records of correspondence initiating contacts and arranging meetings between RTÉ and NNI, and internal emails relating to certain aspects of the proposal.
On 5 April 2012, the applicant wrote to RTÉ expressing concern about the totality of the documents released and referred to a lack of internal documentation, minutes of meetings and correspondence with NNI. He also referred to the absence of correspondence which he had submitted to RTÉ on the subject matter of his request. On the same date, the applicant also wrote to this Office, referring to a newspaper article dated 3 April 2012 where the Director General of RTÉ indicated that the first agreement concerning content sharing possibilities with individual newspaper groups was "almost finalised".
By letter dated 12 July 2012 to this Office, in response to Mr Kiely's preliminary view that all relevant records had been released, the applicant provided copies of an exchange of emails he had with RTÉ staff (including, in particular, the then Head of Corporate Communications, Kevin Dawson) as evidence of the existence of further relevant records. When queried by this Office, RTÉ explained that the searches for relevant records had been confined to RTÉ Publishing as there was no reason at the time to widen that search to the office of the Head of Corporate Communications. The FOI Officer explained that RTÉ has no central register of records and that the organisation has some 2,000 employees working in diverse areas. He further explained that the normal protocol for managing requests is that the FOI Officer contacts the relevant departments and seeks copies of the relevant records. When informed of this exchange of emails, RTÉ informed this Office that Mr Dawson was requested to examine his emails for the relevant period. All relevant emails located by Mr Dawson were subsequently provided to the applicant. RTÉ went on to state that when the applicant expressed surprise at the low volume of records available, RTÉ Publishing was requested to check again to see if there were any other records and the section reported back that no other relevant records had been located.
It is noteworthy that the volume of records identified as coming within the scope of the original request is not significant and it is not entirely unreasonable, in my view, that the applicant might have expected a greater number of records to exist. I note, for example that on a number of occasions during the course of the review, the applicant referred to statements made by the Director General of RTÉ in April 2012 suggesting that the first of the agreements between RTÉ and individual newspaper groups was almost finalised. The applicant is clearly of the view that the Director General's comments suggest the existence of additional records. However, it is also important to note that the Information Commissioner, in conducting reviews under the FOI Act, is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Moreover, I note that the Director General's comments were made some ten months after the original FOI request was made. The scope of the request, and ultimately this review, is limited to those records which existed at the date of the request.
As I have already explained, the role of the Commissioner in cases such as this is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. Notwithstanding the applicant's contention that further records should exist, no further evidence has been made available to this Office to suggest that other relevant records are held by RTÉ. Accordingly, I am satisfied that RTÉ has taken all reasonable steps to locate all relevant records. I find that RTÉ was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of RTÉ to refuse access to additional relevant records on the grounds that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator