Decision
Ms. X and RTÉ
From Office of the Information Commissioner (OIC)
Case number: OIC-149650-C8F6W0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149650-C8F6W0
Published on
Whether RTÉ was justified in refusing access to correspondence received following the transmission of a certain broadcast on the grounds that the information sought is excluded from the scope of the FOI Act by virtue of the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000
22 January 2025
On 8 January 2024 the applicant sought access to the following:
‘Copies of all complaints and compliments made to RTÉ about the December 2023 Prime Time article ‘Leading doctors report HSE to HIQA over transgender care’ and the episode of Prime Time aired on the 14 December 2023’.
On 6 February 2024 RTÉ issued a decision wherein it refused access to records falling within the scope of the applicant’s request on the basis that the records sought are ‘clearly ‘programme related’’ and as such are not subject to the FOI Act by virtue of the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000 (‘the 2000 Regulations’). No schedule outlining the records which RTÉ deemed to fall within the scope of her request was provided to the applicant.
The applicant sought an internal review of this decision and on 13 March 2024 the internal reviewer affirmed the original decision.
On 10 June 2024 the applicant applied to this Office for a review 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 applicant’s comments in her application for review and to the submissions made by RTÉ in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The review is solely concerned with whether RTÉ was justified in refusing the applicant’s request for records falling within the scope her request on the basis that the information sought does not come within the scope of the FOI Act by virtue of the 2000 Regulations.
Before I address the substantive issues arising, I would like to address the failure to provide the applicant with a schedule itemising the records deemed to fall within the scope of her request. Neither at the original decision or at the internal review stage did RTÉ inform the applicant how many records, if any, it considered to fall within her request.
I am sure that RTÉ is familiar with the Code of Practice published by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform which provides that a schedule should be attached to decision letters. In order to assist public bodies, a sample FOI Decision Schedule is also provided as well as general guidance on preparing schedules. I urge RTÉ to take appropriate measures to ensure that its decision makers are all familiar with the CPU guidance materials and that they are used when processing requests, including the provision of a Schedule of Records in the recommended format to requesters when a decision on their FOI request is made in the first instance.
RTÉ was prescribed as a public body for the purposes of the FOI Act 1997 under the 2000 Regulations, which continue in force further to section 54(2) and Schedule 5 of the FOI Act 2014. Schedule 2 of the 2000 Regulations provides that the FOI Act applies to RTÉ only in respect of the following functions:
1. Management
2. Administration
3. Finance
4. Commercial
5. Communications
6. Making of contracts of or for service with any person, company of other body
However, the Regulations also provide that the above functions shall be deemed not to include any of the matters specified in Schedule 3. Schedule 3.5 provides that the functions specified in Schedule 2 shall be deemed not to include;
“The process of post-transmission internal review and analysis of any programme or schedule of programmes broadcast”.
Submissions
In her application to this Office, the applicant said that she considers no part of the 2000 Regulations precludes the release of the relevant records to her. The applicant said that given the length of time which has passed since the broadcast in question, it is hard to see how the release of the compliments and complaints would affect ongoing programming or journalistic decisions within RTÉ. The applicant recalled that her request was for any correspondence received by RTÉ with respect to the programme at issue and not for any internal documentation related to creation of the programme or any internal records relating to any decisions taken further to the correspondence received.
In its submission to this Office, RTÉ provided certain background information in relation to the applicant’s request. It said that in December 2023 RTÉ’s Prime Time aired a programme which discussed gender healthcare issues. It said that this programme featured two experienced clinicians involved in transgender healthcare in Ireland and revealed they had made a formal complaint to the Health Information & Quality Authority (HIQA) about the Health Service Executive’s (HSE’s) treatment of children with gender identity issues. RTÉ said that arising from this broadcast, it received a number of emails about the programme; five of which were official complaints and two of which were deemed ‘complimentary’.
RTÉ also provided this Office with detailed information in relation to the its complaints-handling processes. It referred to the Online Safety and Media Regulation Act 2022 and specifically the requirement under section 47(3) of the Broadcasting Act 2009, as amended by the 2022 Act, for broadcasters to provide a Code of Practice for handling complaints under the relevant provisions of both Acts. It said ‘[i]t is driving solely by editorial standards – the analysis is done by members of the editorial team and the response drawn up by the programme editor’.
RTÉ made specific reference to section 47 of the Broadcasting Act 2009 which was amended by the 2022 Act to read as follows:
1) A broadcaster or provider of an audiovisual on-demand media service shall give due and adequate consideration to a complaint made in writing to it that it has failed to comply with one or more of the matters referred to in section 48(1) where, in the opinion of the broadcaster or provider, the complaint is made in good faith and is not frivolous or vexatious.
Section 48(1), as amended by the 2022 Act, provides that complaints can be made in respect of a television and/or radio broadcast and an audio-visual on-demand media service in relation to a failure to comply with section 46J, 46K, 46L, 46M(2) or (3), a media service code, a media service rule, section 46P(1) or (2), section 106(3) or section 127(6). These provisions include matters such as causing harm, offence, incitement to hatred or undermining the authority of the State, unreasonable encroachment on an individual’s privacy, failure to report news in an objective or impartial manner, failure to ensure that the treatment of current affairs is fair to all interests and is presented in an objective and impartial manner and failure to adhere to standards relating to advertisements.
RTÉ indicated that once a complaint is received, it is checked to ensure it complies with the requirements set out in the 2022 Act. It further said that once the Complaints Unit is satisfied that the relevant requirements have been met, the correspondence is forwarded to the relevant programme team. RTÉ said the latter review the broadcast and the contents of the complaint and draw up a response to the complainant, often with the input of the Head of Editorial Standards. RTÉ further indicated that in circumstances where it does not agree with the complainant, it is open to the complainant to appeal to Coimisiún na Meán who carry out an independent review.
With regard to the broadcast referred to by the applicant in this case, as set out above, RTÉ said it received five complaints from groups and members of the public. It said that all complaints alleged that the broadcast breached two provisions of the 2009 Act, as amended by the 2022 Act; namely section 46J(1)(a); i.e. ‘causing harm or undue offence’ and section 46L(1)(a), i.e. failure to ensure that ‘news is reported and presented in an objective and impartial manner’. RTÉ said that the Prime Time editor reviewed the programme at issue and together with the programme team, wrote individual responses to all complainants outlining why it was RTÉ’s view that the programme did not breach the provisions of the 2009 Act. RTÉ further indicated that one complainant subsequently appealed the matter to Coimisiún na Meán.
In addition, RTÉ said that a weekly summary and review of public commentary on RTÉ programming is routinely compiled by its Information Office. Referred to as the Audience Log, RTÉ said that this document contains summaries of the types of public engagement received, including extracts from emails, letters etc. RTÉ said that this would include criticisms and praise of the type referred to in this review. RTÉ further indicated that the Audience Log is circulated to all senior editorial decision-makers across television, radio and on-line. It indicated that its sole purpose is to inform those individuals of what the wider public is saying about their programmes and is editorial in nature.
RTÉ also referred to the 2000 Regulations as referenced above and said that the manner in which the Regulations provided for RTÉ to be a partially exempt body under the FOI Act is reflective of general international practice where public service media organisations are subject to freedom of information legislation. RTÉ also referred to O’Caoimh J.’s comments inRTÉ v The Information Commissioner [2004] IEHC 113 that Schedule 2 functions must be interpreted narrowly, and Schedule 3 functions given a broad interpretation. It also referred to his comments that, if a function can be described as being a Schedule 2 matter (e.g. management) but involves a Schedule 3 function, then it is not subject to the FOI Act.
RTÉ said that previous decisions of this Office have sought to limit the scope of this judgment but it argued that the judgment is clear that the following principles are certain and unequivocal:
• The areas of exclusion set out in Schedule 3 must be viewed broadly;
• If a matter can be viewed as a Schedule 2 and 3 matter, then Schedule 3 takes precedence;
• All programme-related functions are not subject to the FOI Act.
RTÉ said the records requested in the current case are part of the post-transmission editorial review and therefore are not subject to the FOI Act by virtue of Schedule 3.5. It said that the 2000 Regulations do not contain any details about how or what format the process of post-transmission internal review should take, it is sufficient for the records to relate to that process. RTÉ said that in order to respond to the complaints made in relation to the broadcast at issue, the programme editor had to engage with the programme team, conduct an internal review of the programme and draw up a letter of response. It said that the letters which subsequently issued to the complainants from the Prime Time editor, addressing whether or not the broadcast contravened the 2022 Act, was the product of this review.
RTÉ said that it was only by conducting a post-transmission internal review, similar to that envisaged by Schedule 3.5, that it was possible for the editor to respond to the complaints received. It considers that all the requirements of Schedule 3.5 have been met; namely, there was a review process triggered by the formal complaints, it was a post-transmission review and it was internal. RTÉ also said that it considers this process to be ongoing as one complainant has appealed the matter to Coimisiún na Meán. As both the complainant and RTÉ retain the right to appeal any decision of the Coimisiún to the High Court, RTÉ said that it considers that there are quasi-judicial implications to any possible release.
Records at issue
As set out above, at no point in its handling of the applicant’s compliant did RTÉ provide the applicant with a schedule outlining the records which it considered to fall within the scope of her request. Therefore, in the course of the review by this Office, I sought further information from RTÉ as to what records, if any, it considered fell within the scope of the applicant’s request.
In response RTÉ indicated that it identified seven records as falling within the scope of the applicant’s request and provided a schedule of these records. As referred to above, of the correspondence received, five were deemed to comprise official complaints and two were termed ‘complimentary’. In certain cases the correspondence appears to have been received from members of the public and in other cases it would appear to have been received from representative organisations.
Analysis
As set out above, the import of the 2000 Regulations is that RTÉ is a public body for the purposes of the FOI 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 RTÉ in the context of matters specified in Schedule 3, they fall outside the scope of the Act.
The explanatory note with respect to the 2000 Regulations states the legislation only applies to ‘the non-programme related functions’ of RTÉ. The High Court endorsed this view in the 2004 case ofRTÉ v The Information Commissioner [2004] IEHC 113, wherein O’Caoimh J. stated that what was sought to be exempted from the Act via the Statutory Instrument were ‘programme related records’. The question I must consider is whether the records sought by the applicant are excluded pursuant to Schedule 3 of the 2000 Regulations in that they comprise programme related information.
First, I have considered whether the information sought by the applicant is encompassed by Schedule 2. While I fully accept, pursuant to the judgment of O’Caoimh J., the Schedule 2 functions in the 2000 Regulations must be interpreted narrowly and the Schedule 3 functions given a broad interpretation, there can be no doubt, in my view, that correspondence from members of the public, either positive or negative, relates to the communications function of RTÉ.
Accordingly, the question I must consider is whether the information sought concerns any of the matters specified in Schedule 3. If it does, then the information is deemed not to be included in the functions set out in Schedule 2 and the FOI Act does not apply to such information. If it does not, then the Act applies to the information and a right of access exists unless the information sought is otherwise exempt pursuant to one or more of the exemption provisions in the Act.
RTÉ contends that the information sought in this case comprises the type of information encompassed by Schedule 3.5; namely information relating to the process of post-transmission internal review and analysis of any programme or schedule of programmes broadcast. Having carefully considered the matter, I am satisfied that correspondence received from members of the public following the transmission of a programme can reasonably be said to comprise information relating to RTÉ’s post-production review and analysis of the programme. Bearing in mind the legislative and judicial directive that the provisions of Schedule 3 are to be given a broad interpretation, I am satisfied that post-transmission correspondence received in relation to a particular broadcast can reasonably be said to comprise information relating to the specific programme at issue. I am further satisfied that the internal complaints handling processes within RTÉ, mandated in part by the requirements of the 2009 Act as amended, necessitates a process of post-programme analysis and reflection relating specifically to the broadcast at issue. I am therefore satisfied that correspondence received by RTÉ following the December 2023 Prime Time programme forms part of the post-transmission review and analysis with respect to that broadcast. In addition, I do not accept the applicant’s argument that due to the passage of time any information contained in the relevant records is no longer relevant to programme planning or journalistic decisions. I am satisfied that Schedule 3.5 does not contain any temporal limitations and if information is deemed to relate to post-transmission review it is excluded by virtue of that provision, irrespective of how much time has passed since the records were created.
I find, therefore, that RTÉ was justified in refusing the applicant’s request on the ground that the information sought falls outside the scope of the FOI Act by virtue of the provisions of Schedule 3 paragraph 5 the 2000 Regulations.
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 access to the records at issue by virtue of the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 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.
Mary Connery
Investigator