Decision
Mr X and RTÉ
From Office of the Information Commissioner (OIC)
Case number: OIC-149330-C4B0L4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149330-C4B0L4
Published on
The applicant’s FOI request to RTÉ of 28 March 2024 sought access to the anonymised dataset of the exit poll for the referendum on the Thirty-Sixth Amendment to the Constitution. The referendum concerned the Regulation of Termination of Pregnancy. The applicant said that the dataset had been used to produce the statistics in a report commissioned by RTÉ, dated 25 May 2018.
On 29 April 2024, RTÉ refused the applicant’s request on the basis that the requested record was programme-related and not subject to FOI further to the provisions of Statutory Instrument No. 115 of 2000 (the 2000 Regulations).
The applicant sought an internal review on 29 April 2024. RTÉ’s internal review decision of 21 May 2024 affirmed its refusal of the request on the basis that the exit poll and subsequent dataset constitute programme-related records that were not subject to FOI.
On 24 May 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 and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, RTÉ and the applicant, and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether RTÉ was justified under the FOI Act in refusing the applicant’s request.
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 services with any person, company or other body.
Article 2(3) of the Regulations further provide that “[f]or the purposes of these Regulations the functions specified in Schedule 2 to these Regulations shall be deemed not to include any of the matters specified in Schedule 3 to these Regulations.” Amongst the matters excluded by Schedule 3 are:
“1. The gathering and recording in any form of news, information, data, opinions, on or off the record quotes or views from any person or source, for journalistic or programme content purposes, whether or not a programme
(a) is produced on the basis of such information, or
(b) is broadcast.
…
3. The editing and storing of any material recorded by any means, whether written, aural, visual or otherwise, for the purpose of programme origination, whether or not such programme is produced or broadcast.”
RTÉ says that the 2000 Regulations specify the functions of RTÉ where the FOI Act does and does not apply (Schedules 2 and 3, as set out earlier). It says that the dataset was not required for any of the functions set out at 1 to 5 of Schedule 2 and that it is not relevant to the ‘making of contracts of or for service with any person, company or other body.’
RTÉ refers to the High Court’s interpretation of the 2000 Regulations in RTÉ v The Information Commissioner [2004] IEHC 113. It refers to the Court’s comments that Schedule 2 functions must be interpreted narrowly, and Schedule 3 functions given a broad interpretation. It says that the judgment stresses that it is not ‘programme functions’ which are excluded but all functions relating to programmes.
RTÉ says that it is not obliged to conduct exit polls. It says that the referendum was a significant event in Ireland. It says that its News and Current Affairs division made the editorial decision to engage Behaviour and Attitudes (B&A) to conduct an exit poll on the referendum for the sole purpose of programme content purposes and journalism.
RTÉ says that the exit poll consisted of voters being asked various questions as they left polling stations, including how they voted. It says that the poll responses (the source material), and ensuing dataset, essentially provided a ‘snap shot’ of the likely outcome of the vote within hours of the polls closing. It says that the dataset was analysed by B&A experts to provide material for RTÉ journalists and guests on RTÉ programmes, before ballot counting began and tallies eventually started arriving from count centres. It provides links to various RTÉ programmes featuring exit poll results and data. Its position is that the dataset is comprised of information gathered for journalism and programme origination/content purposes.
RTÉ acknowledges that it published detailed polling results on 25 May 2018. It says also that, to defray the considerable costs of exit polls, several universities contributed financially and were in turn given access to the poll results. It says that these factors do not alter the journalistic and programme content purpose of the details at issue.
The applicant has made no arguments as to why he contends that the requested records are subject to FOI.
I am satisfied from RTÉ’s submission that it decided to conduct an exit poll, the results of which were entered into the requested dataset and subsequently analysed, with a view to reporting/commentating on polling in the referendum. I am also satisfied that such analysis was reported on in various RTÉ radio and television programmes and online.
I am satisfied that the dataset may be described in the circumstances as information gathered and recorded for journalistic or programme content purposes, and/or information stored for the purpose of programme origination. I do not consider that the dataset should be seen any differently because universities contributed to the cost of the polling and were given access to its results.
Having considered the matter carefully, I find that RTÉ was justified in refusing the request on the ground that the dataset at issue falls outside the scope of the FOI Act by virtue of the provisions of 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 the requested record falls outside the scope of the FOI Act by virtue of the provisions of the 2000 Regulations.
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.
Anne Lyons
Investigator