Decision
Mr Ken Foxe, Right to Know and RTÉ
From Office of the Information Commissioner (OIC)
Case number: OIC-156434-G8K1D0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156434-G8K1D0
Published on
Whether RTÉ was justified in refusing access, under sections 36 and 37(1) of the FOI Act, to the fee band for each activity recorded in its Register of External Activities for Q2 2024 and a small amount of additional information
19 November 2025
RTÉ has a long-standing practice of allowing staff and contractors to engage in external activities for which permission must be sought and approved. Since 2024, it has maintained a centralised Register of External Activities (ROA) which contains details of all approved external activities for staff and contractors across the organisation. It contains the individual’s name, the date of the event, a brief description of the event/host and what payment band the event comes under, including zero payment.
On 27 November 2024, the applicant requested access to a list/spreadsheet/database of the 106 approved activities from the ROA for Q2 2024. He said the record should include the name of the person, the approved activity, whether a payment was made, and the payment size category as used in the official register. On 17 January 2025, RTÉ part-granted the request. It provided a copy of a spreadsheet with certain information redacted under sections 36 and 37 of the FOI Act. The applicant sought an internal review of that decision, following which RTÉ affirmed its decision it redact certain information under section 37. On 11 February 2025, 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 his application for review and to the submissions made by RTÉ in support of its decision. I have also had regard to the contents of the record concerned. 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 its decision to refuse access, under sections 36 and/or 37 of the FOI Act, to certain information in the ROA for Q2 2024.
The record at issue contains details of the name of the individual who engaged in external activity, details of the activity undertaken, the fee band, the area within RTÉ where the individual works, and certain additional notes. The fee band was redacted in all cases as were the small number of additional notes. Redactions were made to five descriptions of activities undertaken.
Section 37(1) of the Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act goes on to identify 14 categories of information that comprise personal information, including (ii) information relating to the financial affairs of the individual, and (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition. Paragraph I provides that where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions of the position held. Similar information relating to service providers is also excluded, pursuant to Paragraph II.
The exclusions are intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or a service provider in the context of the particular position held or service provided, or any records created by the staff member or service provider while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions or services provided. They do not, however deprive public servants or service providers of the right to privacy generally.
In its submissions, RTÉ said that while it considers that section 37(1) applies to the entirety of the Register, having carefully considered the public interest balancing test as set out in Section 37(5), it granted access to the majority of the Register with the exception of the column relating to payments/non-payments, any additional comments and a small amount of information in the column relating to the description of the events. It said that this stance is in keeping with the custom and practice for many years whereby it has released the list of approved external activities for named individuals. It said it considers the remaining information to comprise the personal information of the employees/contractors concerned and that the public interest does not support the release of this information.
RTÉ argued that release of the information at issue would involve the disclosure of personal information, namely information relating to the financial affairs of an individual. It argued that whether someone did an external activity for free or how much they got paid would generally be known only to the individual involved. It said the payment information is held by it on the understanding it would be treated as confidential. It argued that the exclusions at Paragraphs (I) and (II) do not apply to such information as external activities are, by their very definition, not activities undertaken by employees in the performance of their functions or contractors for the purpose of the provision of services.
I am satisfied that the information at issue is personal information for the purposes of the FOI Act and that section 37(12) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2) provides that subsection (1) does not apply if-
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
No argument has been made that any of the circumstances outlined above at subsections (a), (c), (d) or (e) are relevant in this case, nor do I consider any to apply.
On the matter of the applicability of subsection (b), RTÉ said in its submissions that a small number of individuals expressed a wish for the fact that they engaged in outside activities for free to be made known. It said that on the face of it, this would seem to meet the criteria set down in Section 37(2)(b). It said, however that not all those who engaged in external activities for no fee did so. It added that in identifying those who did external activities for no charge, it would, by default, narrow down those who did activities for a fee. It referred to the statistical summary from the ROA it publishes on its website. The Q2 2024 return contains details of the number of approved activities, and the percentage of those activities that fall within each of the stated fee bands. It said, for example, that the ROA contains details of thirty named individuals, a certain number of whom confirmed they did the events for no charge. It said that if it was to release details of those who did not charge a fee and consented to the release of that information, this would, when coupled with the information published by RTÉ in relation to the number of payments received, identify those individuals who did receive payments as well as give the public a reasonably precise figure of how much they earned.
Having carefully considered the matter, I accept that in circumstances where certain statistical information in relation to payments made for external activities is already in the public domain, the partial release of information in relation to individuals who have consented to the release of the fact that they received no payment could inadvertently result in the release of personal information in relation to those who have not so consented. As such, I am not satisfied that the requirements of section 37(2)(b) have been met in this case.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I have no reason to consider that section 37(5)(b) applies, and the applicant has made no arguments to this effect.
In his correspondence with RTÉ and with this Office, the applicant said that RTÉ’s decision
is directly contradicted by public statements made by RTÉ (including by its director general) as well as the data protection impact assessment (DPIA) prepared by RTÉ, which argued exactly the opposite of what the decision does. He said this is perhaps best summed up in the following from the DPIA:
" RTÉ is a public service broadcaster funded by public funds. The transparency, openness and public scrutiny of its activities is paramount to the future of RTÉ and the rebuilding and maintenance of public trust. Without the publication of the ROA [register of activities], these goals will be severely curtailed. There is a compelling and overriding interest in ensuring that publicly funded bodies are operating in a transparent and accountable fashion - the publication of the ROA is an important facet of RTÉ achieving this purpose."
He included other indicative quotes from the DPIA and said that they show that the FOI decision stands in direct contrast to what RTÉ has expressed both publicly and internally on this matter. He said that in reality, RTÉ is still engaged with its parent department in an attempt to have legislation changed so that it can publish this information. He said it is beyond strange to assert there is "no cogent, fact-based reason to conclude it would be in the public interest" to release the information when RTÉ is actively working in the background to have this information made public, and in the public interest.
In its submissions to this Office, RTÉ said that having carefully considered the public interest balancing test as set out in Section 37(5), it released everything in the Register except for the column relating to payments/non-payments. It said it is of the view that, in relation to such information as well as any additional comments, the public interest weighs in favour of the individuals and their constitutional rights to privacy. It said it is not a question of how big or small a breach the individual’s constitutional rights to privacy would be if the information were to be released. It said that what RTÉ management and/or the applicant want is not the ‘public interest’ test required under the Act. It said that test has been clarified by the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Or s [2020] IESC 57 (the eNet judgment) and can generally be said to be what is in the benefit of society at large. It said that there have to be ‘cogent, fact-based reasons’ to overturn a mandatory exemption. It said that if there are no such reasons, the mandatory exemption should apply, according to the Court. It said that the publication of financial information in banded form relating to identifiable individuals in this case would mean that personnel working for RTÉ would be required to disclose financial information that no elected official nor member of the civil or public service are required to disclose.
RTÉ explained that on his appointment, the new Director General introduced a range of measures to improve governance in RTÉ. It said this involved the creation of several registers including a centralised ROA. It said that initially, RTÉ management wanted to publish the register in full, including details of payments. It said that as part of the process, RTÉ engaged with the Data Protection Commission (DPC) to seek its views. It said the DPC did accept that it was appropriate for RTÉ to gather all the information, including what payment band (if any) the external activities fell under, for the purpose of internal management only. It said the DPC informed RTÉ that it would invoke its statutory powers if the organisation proceeded to publish the full Register It said it was the view of the DPC that bespoke legislation underpinning such a move would be required. It said the DPC could not have been clearer on this issue in expressing its view that the Register constituted personal information and that the proposals to publish it in its entirety, including payment bands, would involve unnecessary processing of personal information and therefore be in breach of GDPR.
RTÉ added that it released the redacted list of external activities on the basis that it was in the public interest to show what activities are being approved, thereby reassuring the public of the probity of such activity and that this was being properly managed by RTÉ. It said, however, relating to payment bands (including where there were no payments) it was RTÉ’s view, having conducted the same public interest test, that the public interest weighed more with protecting the constitutional rights of the individuals. It said that as part of that test, the decision maker took into consideration the fact that in addition to the list of activities, RTÉ also routinely publishes - on an anonymised basis - the overall number of external activities and a breakdown of those in regard to payment bands It said this ensures maximum transparency while preserving the rights of the individuals involved. It noted that all civil and public servants are allowed engage in outside activities for which they receive payments. It referenced the Civil Service Code, as follows:
“A civil servant may accept a modest payment or benefit in kind if the task, while work related, is not an integral part of his or her official duties and is carried on outside of normal working hours.”
RTÉ said it had also regard to sections 6(6) and 11(3) of the FOI Act. It described section 6(6) as setting out the guiding principles of the FOI Act and argued that the release of the fee bands would not serve those principles. It argued that by part-granting the request, it had fully complied with the elements of section 11(3).
On the issue of whether RTÉ’s stance regarding the request is contradictory to what was set out in the DPIA, it said the DPIA was required under law to set out the case as to why RTÉ wished to publish the Register of External Activities. It noted that FOI and GDPR are very different access regimes. It said it is entirely in agreement with the statement extracted from the DPIA referenced by the applicant. It said the obvious fact to note is that the Register is actually published. It said the applicant himself received a copy of it as have others. It said it clearly lists the approved activities, who was involved, where and when and that is the core of the Register. It said that what is not published is one additional element of it - the level (or otherwise) of payment. It said there is no wider societal benefit to knowing what a limited number of individuals in one particular semi-State company external activities charge and what individuals did receive payment for external activities. It said that does not increase transparency around RTÉ or improve public scrutiny in relation to the work of the national broadcaster. It said the transparency spoken about in the DPIA is exactly what has been achieved – it shows what external activities have been approved involving named individuals but at the same time upholds the individuals' constitutional rights. It said it disagrees with the applicant’s view that the decision in this request ‘stands in direct contrast’ to what has been stated by the organisation. It said it wanted the register published and that has been achieved (bar personal information). It said it lists the individuals and the activities approved thereby holding management to account for their decisions and improving transparency.
Finally, RTÉ said the fact that RTÉ management sought a specific bespoke piece of legislation to allow for the publication of the Register is not relevant. It said the applicant’s request can and must be viewed only through existing legislation, i.e. the FOI Act. It said it is also very possible that, should the relevant Department bring forward legislation, it may not include the legislative framework to allow for payment details to be released. It said it is significant that under the incoming Broadcasting Amendment Bill, it is proposed that RTÉ disclose total employee remuneration (including contractors) within an initial band of €0-60k and bands of €10k thereafter. It said this relates to payments only made by RTÉ and even with this, they will be anonymised. It said there is no mention of external activities and hence, there can be no assumption the Government will legislate to compel RTÉ to publish actual earnings paid by external entities to any person listed in the ROA.
Before I consider where the balance of the public interest lies in this case, I wish to address some related comments made in the submissions, as set out above. First, this Office has commented upon the interplay between the FOI Act and data protection legislation in many previous decisions. In short, data protection legislation provides that personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. I am satisfied that the engagements between RTÉ and the DPC in relation to the applicability of data protection legislation to the potential release of the information at issue are of no relevance to my consideration of where the balance of the public interest lies.
Secondly, I am of the view that the question of whether or not RTÉ is actively working in the background to have the information at issue made public is of no relevance to my consideration of where the balance of the public interest lies. It is open to any public body to decide if it wishes to go beyond the boundaries of the FOI Act and to publish information that would otherwise be exempt from release under the Act. On the other hand, I must abide by the provisions of the Act which require me to balance the public interest in release against the privacy rights of the individuals concerned.
Thirdly, while RTÉ described section 6(6) as setting out the guiding principles of the FOI Act, that provision simply serves to identify the public interest considerations the Minister may have regard to when deciding the extent to which the FOI Act should or should not apply to any particular body. I do accept, nevertheless, that the provision is reflective of public interest factors that may be of relevance when considering the applicability of section 37(5)(a).
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have had regard to the Supreme Court judgment in the eNet decision referred to above. Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests general.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
It seems to me that RTÉ’s decision to release details of those individuals who were involved in external activities and the nature of the activities they were engaged in, coupled with its publication of a statistical summary containing details of the number of approved activities and the percentage of those activities that fall within each of the stated fee bands, has significantly enhanced the transparency of the practice of staff and contractors engaging in external activities. On the other hand, it is not apparent to me that the release of the fee bands, or the release of the limited other redactions made, would further enhance the transparency of RTÉ’s activities to any real extent. Rather, it would serve to throw light on the personal affairs of the individuals concerned. The matter of whether or not an individual charges for external activities or what fee they decide to charge are matters for the individuals themselves. In circumstances where RTÉ has already disclosed who has engaged in external activities and what those external activities comprise, I fail to see how it is in the public interest to know what fees, if any, those individuals charged for the services provided. The activities in question are external to the activities undertaken by such individuals in the performance of their roles and are not renumerated from public funds provided to RTÉ. The Act is concerned with enhancing the transparency of public bodies, not individuals. In my view, disclosure of the fee bands would disclose nothing of significance about RTÉ’s activities.
Having carefully considered the matter, I am not satisfied that any sufficiently specific, cogent and fact-based reason exists for finding that the public interest in the release of the information at issue outweighs, on balance, the privacy rights of the third parties concerned. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that RTÉ was justified in withholding the information at issue under section 37(1) of the Act. Having so found, I do not consider it necessary to examine the applicability of section 36 to the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the RTÉ to refuse access to certain information in the RTÉ Register of External Activities for Q2 2024 under section 37(1) of the 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.
Stephen Rafferty
Senior Investigator