Decision
Mr X and RTE
From Office of the Information Commissioner (OIC)
Case number: OIC-150526-W3C8W7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150526-W3C8W7
Published on
Whether RTÉ was justified in refusing access to minutes of board meetings of GAAGO on the basis that they do not hold the records for the purposes of the FOI Act, and that they are exempt under section 36
1 April 2025
GAAGO is a video streaming service, developed as a joint venture by the GAA and RTÉ to allow GAA matches to be watched via the internet. In a request dated 15 May 2024, the applicant sought access to (1) the minutes of all board meetings of GAAGO from 1 January 2023 to the date of the request and (2) any correspondence between the Director General of RTÉ and GAAGO from 1 July 2023 to the date of the request.
In a decision dated 14 June 2024, RTÉ refused the request. It refused part (1) on the basis that the records contained commercially sensitive information such that they were exempt from release under sections 36(1)(a), (b) and (c) of the FOI Act. It refused part (2) under section 15(1)(a), on the basis that no relevant records existed. On 24 June 2024, the applicant sought an internal review of this decision. On 15 July 2024, RTÉ affirmed its decision. On the same day, the applicant applied to this Office for a review of RTÉ’s decision.
During the review, RTÉ changed its position. While it maintained that the board meeting minutes were commercially sensitive, it said that it was of the view that it did not actually hold the records for the purposes of the FOI Act. The applicant was notified of this change in position and invited to make submissions, which he did.
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 RTÉ and by the applicant. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The applicant confirmed that he was seeking a review of the decision of RTÉ in respect of part (1) of his request only, i.e. the minutes of board meetings of GAAGO.
This review is concerned with whether RTÉ was justified in refusing access to these records on the grounds that it does not hold them for the purposes of the FOI Act. If I find that the records are held by RTE, I will then go on to consider the application of section 36.
Statutory Instrument No 115 of 2000 sets out how the FOI Act applies to RTÉ. Schedule 2 sets out the areas of the broadcaster which are subject to FOI, which include RTÉ Commercial Enterprises Ltd. For the purposes of this review, references to RTÉ include RTÉ Commercial Enterprises Ltd.
Section 11(1) of the FOI Act provides that every person has a right to be offered access to any record held by an FOI body (subject to the rest of the Act). However, the question as to whether a record is actually “held” by an FOI body for the purposes of the FOI Act can be a complex one, and the term “held” is not defined in the Act.
Sections 2(5) of the FOI Act provides that a reference to records held by an FOI body includes a reference to records under the control of that body, and I will consider this first.
According to its constitution, GAAGO is a private company limited by shares registered under part 2 of the Companies Act 2014 on 15 December 2017. Its shares are held on a 50/50 basis by RTÉ Commercial Enterprises Ltd and the GAA. It is the applicant’s position that as a 50% owner of GAAGO, RTÉ has control of the records sought. It is RTÉ’s position that GAAGO is an entirely separate legal entity, controlled by its own board and management, and that RTÉ does not have control of these records.
The FOI Act does not define when a record might be deemed to be under the control of an FOI body for the purposes of the Act. The High Court has previously considered the issue of control in the case ofThe Minister for Enterprise, Trade and Employment vs the Information Commissioner [2006] IEHC 39, and in the case ofWestwood Club v Information Commissioner and Anor [2013 No. 175 MCA]. These judgments set out various non-exhaustive matters to take into account when considering if an entity is controlled by a public body, such as: which party has day to day operation of the relevant functions; which party has real strategic control; the extent of the financial nexus between the parties; the existence of legal or formal agreement/protocols between the parties; and whether these agreements/protocols give the FOI body functional control over the activities under which the requested records were created.
By way of background, RTÉ referred in its submissions to the Broadcasting Act 2009 which provides that it may enter into joint ventures to exploit commercial opportunities (section 104(2)), and that such commercial ventures “shall be made at arm’s length and on commercial terms” (section 108(2)). RTÉ said that GAAGO operates as an independent legal entity, in accordance with the provisions of the Companies Act. As such, it said that it prepares minutes of meetings of directors including details of membership, discussions and decisions. In addition, it said that GAAGO’s financial statements are independently audited and filed on an annual basis with the Companies Office alongside annual reports. It said that GAAGO enters into contracts in its own name and that staff are employed directly by it.
RTÉ acknowledged that two of its staff members sit on the board of GAAGO and are in possession of the records sought; this will be explored further below. RTÉ said that, as a shareholder, it is entitled to be briefed on the business plans of GAAGO in line with good governance and that such briefings take place on a strictly confidential basis, however it said that it is not entitled to view the minutes of board meetings or take action arising out of their contents. It said that this would undermine the independence of the board and the company and pierce the ‘corporate veil’ which is a settled principle of company law.
Having carefully considered the matter, in circumstances where GAAGO is a private limited company, which has a board of directors appointed to manage and run the company, whose duties, including the recording of minutes, are set down in the Companies Act, and where RTÉ does not hold a majority share in the company, it does not seem to me that RTÉ can be said to control GAAGO. I accept that as a 50% owner of the company RTÉ has a significant role and a degree of influence in it, however it seems to me that in the event of a dispute or disagreement, it does not own sufficient shares such that it could control the outcome of a decision. Neither do I accept that RTÉ controls the board of directors and their activities, which would be contrary to the Companies Act. For these reasons, I do not accept that RTÉ controls GAAGO such that board meeting minutes held by GAAGO can be said to be under the control of RTÉ. I find that section 2(5) does not apply to the records.
It is not in dispute that two staff members of RTÉ sit on the board of directors of GAAGO and are in possession of the records sought. This Office accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. The Supreme Court considered the meaning of "held" for the purposes of the FOI Act 1997 inMinister for Health v Information Commissioner [2019] IESC 40 (commonly known as the Drogheda Review case). In that case, the Court found that for a record to be held within the meaning of section 6(1) of the FOI Act 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and it must also be entitled to access the information in the record. Section 11(1) of the FOI Act 2014 is the equivalent of section 6(1) of the Act of 1997. As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the records sought in this case to be deemed to be held by RTÉ, it must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.
RTÉ made submissions on the Drogheda Review test, stating that RTÉ is not entitled to view the records and that only the two GAAGO directors are entitled to access them. It said that these directors hold the records for the purposes of their work on behalf of GAAGO, and not for their work in RTÉ. It referred to Guidance Note 9 from the Central Policy Unit which deals with board papers held by FOI bodies, and said that the two board members in question were appointed due to their sporting/financial expertise rather than as general representatives of RTÉ. It said that there was a conflicts policy in place to prevent and/or manage any conflict of interest arising as between the interests of RTÉ appointed directors and that of the company, that requires RTÉ members of the board to step outside the room if there are any discussions which relate to RTÉ.
In response, the applicant said that RTÉ’s claim that it cannot access the records ignores the fact that RTÉ has been specifically allocated two director slots in GAAGO so that its interests as shareholder can be represented. It said that RTÉ can compel the staff members to hand over the records, either by exercising their employer/employee relationship over the staff member, or by removing them from their role as director if they do not comply with their request. He went on to say that the suggestion that the two directors, clearly nominated by RTÉ, were appointed due to their sporting/financial expertise rather than as general representatives of RTÉ was untenable. He also noted that the previous Director General of RTÉ was a director of GAAGO, and said that if she was acting independently due to her own expertise, rather than generally representing RTE, that this would have created an irreconcilable conflict of interest.
With regard to the Guidance Note from the Central Policy Unit referenced by RTÉ, while I note that it contains useful factors for consideration when processing an FOI request for board papers held by government departments, this is in circumstances where the board papers are held in respect of State bodies not currently subject to FOI. GAAGO is not a state body, but is a private company. It seems to me that the two GAAGO directors who are employed by RTÉ hold copies of the board meeting minutes not in connection with, or for the purposes of, their functions as RTÉ employees but rather for the purposes of carrying out their duties as directors of GAAGO. In its ‘ Single Guide for Companies ’, the Office of the Director of Corporate Enforcement (ODCE) sets out the duties of company directors, both in accordance with common law /fiduciary duties and under the Companies Act and related legislation. I understand from this that a director’s duties are usually owed in the first instance to the company and not to the members, creditors or employees of the company, and that directors must avoid conflicts between their duties to the company and their other interests.
As to whether RTÉ is entitled to access the information contained in the records, i.e. the minutes of meetings held by the board of directors, it is not apparent to me that it is. I accept that as a shareholder in the company, it is entitled to certain information concerning the company including inspecting and taking copies of the minutes of general meetings and resolutions. However, it is my understanding that this does not extend to the meetings of board of directors, where access to the minutes is restricted to the directors themselves (or to the ODCE if required). In response to the applicant’s argument that RTÉ can essentially force the directors to hand over the records, it seems to me that these measures are rather extreme and would not be necessary if RTÉ were able to demonstrate a legitimate right of access to the records in the first instance.
For all of the above reasons, I find that while the records are in the possession of two staff members of RTÉ, they are not in their possession in connection with their functions within RTÉ and that RTÉ is not entitled to access the information contained within the records. I find, therefore, that the records are not held by RTÉ for the purposes of the FOI Act, and that RTÉ was justified in refusing the request on this basis.
In the circumstances, there is no need to go on and consider the question of section 36.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ’s decision. I find that it was justified in refusing the applicant’s request for minutes of board meetings of GAAGO on the grounds that it does not hold such records for the purposes of the FOI Act.
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.
Emer Butler
Investigator