Cinneadh
Mr A and RTÉ
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-146141-M8Z6J8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-146141-M8Z6J8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether RTÉ was justified in refusing access to details of payments made to Fair City script writers from 2015 onwards on the ground 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 or alternatively, on the ground that it is exempt under sections 36(1) and/or 37(1) of the Act
27 November 2024
In a request dated 19 September 2023, the applicant sought access to records showing how much RTÉ spent on paying for script writers for the production Fair City from 2015 to the date of his request and records showing a breakdown of payments made to each individual script writer over those years. In a decision dated 19 October 2023, RTÉ refused the request. It said that the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (the 2000 Regulations) limits the scope of the FOI Act to non-programme related functions and that the records sought are programme related. It added that even if the Act was to apply to the records, the request would be refused under section 37(1).
On 14 November 2023, the applicant sought an internal review of RTÉ’s decision. He argued that the records sought were administrative in nature and not related to editorial matters. On 6 December 2023, RTÉ affirmed its refusal of the request. On 2 February 2024, the applicant applied to this Office for a review of RTÉ’s decision.
During the course of the review, and in light of the nature of the information sought, this Office notified certain third parties of the review and provided them with an opportunity to make submissions.
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 the applicant, RTÉ, and a number of third parties who were notified of the review. I have also had regard to the nature of the information sought. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, RTÉ notified this Office that it was also seeking to rely on sections 36(1)(b) and 36(1)(c) as grounds for refusing the request. The applicant was notified of the FOI body’s revised position and provided with an opportunity to make submissions which were duly received.
Accordingly, this review is concerned with whether RTÉ was justified in refusing the applicant’s request for details of how much RTÉ spent on paying for script writers for the production Fair City from 2015 to the date of his request and a breakdown of payments made to each individual script writer over those years on the basis that the information sought does not come within the scope of the FOI Act by virtue of the 2000 Regulations, or alternatively, that the information is exempt under sections 36(1)(b), 36(1)(c) and/or 37(1) of the FOI Act.
It is important to note at the outset that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which RTÉ reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I deem it appropriate to consider the applicability of additional mandatory third-party exemptions, notwithstanding the fact that the provisions were not initially relied upon as a ground for refusing the request.
I also wish to comment on certain points raised by the applicant in communications with this Office. As noted above, the Investigator notified the applicant of RTÉ’s reliance on sections 36(1)(b) and 36(1)(c) of the FOI Act during the course of the review. The Investigator noted that a number of third parties notified of the review also argued that section 36 served to exempt the information. She outlined the substantive arguments advanced by RTÉ and provided the applicant with an opportunity to make submissions in response. In response, the applicant sought a copy of the revised RTÉ submissions in order to address them fully. The Investigator explained that it is not the general practice of this Office to exchange submissions between parties to a review. She noted that the submissions received by RTÉ in respect of section 36 were relatively limited and said that she was satisfied that all material points raised by RTÉ had been brought to the applicant’s attention. She also referenced submissions received by third parties and said that the majority of respondents argued that the information in the record is commercially sensitive and that release could impact their capacity to negotiate with other contracting bodies. She noted that the parties generally argued that there is no public interest in the specific payments made to individual script writers that tips the balance in favour of release. In further submissions received from the applicant he noted his disappointment that the full submissions made by RTÉ and by certain third parties had not been made available to him. He said that he would be better placed to respond if he was able to directly address the full set of claims made in the other parties’ submissions. That said, he proceeded to make submissions in respect of the application of section 36 and the relevant public interest test.
Under section 25(3) of the Act, this Office is required to take all reasonable precautions during a review to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. As submissions made by parties to a review may contain sensitive information that may not be appropriate for disclosure to others, submissions are not exchanged as a general rule. Moreover, reviews undertaken by this Office are inquisitorial, as opposed to adversarial, in nature. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration.
Under section 45(6) of the FOI Act, this Office has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, we aim to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. I am satisfied that the applicant was on notice of all material issues of relevance to the review and was afforded an appropriate opportunity to make submissions on those issues. I would also note that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, Quirke J made the following comments inThe National Maternity Hospital v the Information Commissioner [2007] IEHC 113:
“I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures.”
The 2000 Regulations provide that the FOI Act applies to RTÉ only in respect of certain functions set out in Schedule 2, namely:
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 3.4 provides that the functions specified in Schedule 2 shall be deemed not to include;
“The process of making editorial decisions concerning programme or programme schedule content which, without prejudice to the generality of the foregoing, shall include preliminary programme proposal reviews, programme planning and final pre-transmission editorial decisions”.
Submissions
In essence, RTÉ’s position is that payments to individual script writers arise from an editorial decision and are linked to the day-to-day operation of RTÉ.
It noted that the explanatory note to the 2000 Regulations states the legislation only applies to ‘the non-programme related functions’ of RTÉ. It noted that 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.’
Noting the High Court finding that Schedule 2 functions must be interpreted narrowly and Schedule 3 functions given a broad interpretation, it argued that the 2000 Regulations do not require that a matter is ‘solely’ editorial for it to be a Schedule 3 matter and that it is
sufficient if the mater relates to the programme planning process.
RTÉ referenced the European Media Freedom Act and said that it defines ‘editorial decision’ as “a decision taken on a regular basis for the purpose of exercising editorial responsibility and linked to the day-to-day operation of a media service provider”. It said that payments to individual script writers arise from an editorial decision and are linked to the day-to-day operation of RTÉ. It said individuals involved in Fair City are selected on the basis of their skillset and what they bring to the programme and that this is an editorial decision. It said that payments to those individuals are part of the process of engaging those individuals, i.e. the information relates to the process of programme planning. It said these are not matters for management but are entirely matters for the programme makers.
RTÉ also referenced its own Journalism Guidelines. That document provides that editorial responsibility within RTÉ rests with the editorial chain of management and that those involved in the creation of RTÉ content are required to exercise editorial responsibility for it. It said that the definitions referenced make it clear that those who make programmes are editorially responsible for them. It said that an intrinsic part of programme planning is choosing (and therefore choosing to pay) certain individuals. It said that this is a decision made in the day to day operation of the media service provider.
RTÉ accepted that the information sought could be considered to fall within Schedule 2. It said, however, that the matter is not that straightforward. It said the spend on individual scrip writers is a function specified in Schedule 3: the process of programme planning. It said that planning in respect of Fair City takes place over many months, that the decision as to who is engaged as a script writer is a matter that rests with the programme team, and that payments relate to that process.
Apart from the Ó Caoimh judgment referenced above, RTÉ also referenced a number of United Kingdom Court judgments. It said that the BBC has a similar “programme making exemption”. In light of the non-binding nature of judgments from other common law jurisdictions, I do not propose to repeat the submissions in full in this decision. However, I confirm that I have had regard to the reasoning referenced in the relevant sections of the judgments.
RTÉ said that records relating to programme planning are not time limited. It said that they do not become subject to the Act after the decision or plan has been made and that the 2000 Regulations do not permit this. It also said that the Regulations do not allow for consideration regarding the spending of money which comes either directly from the public via the licence fee or from commercial revenue to be a factor in determining whether records are editorial or not. It said that there is no public interest override clause in the 2000 Regulations.
In respect of the status of script writers referenced in the record, RTÉ said that that individuals are not staff but are freelance writers engaged by the organisation on a contractual basis. It provided detail in respect of the process of attracting and training script writers. It said that new writers join a “stable” of established script writers and that, depending on their abilities (which is an editorial decision) they may be asked to write a number of scripts over several months. It said that experienced writers generally get more work and it provided some further detail in respect of script writing assignments. It said that the work script writers get, and therefore the payments they receive, are programme related, as they relate to how many scripts they write.
RTÉ provided further submissions in response to specific questions posed in respect of the 2000 Regulations. These submissions effectively repeat the arguments advanced above and, as such, I do not intend to repeat them. I confirm that I have considered them in full.
In his application to this Office, the applicant said that the records sought are administrative in nature and not related to editorial matters. He said that “in no way” are the records sought covered by the Schedule 3 exemption which he said relates only to journalists’ sources or the ‘process’ of editorial decisions or reviews relating to programmes. The applicant also made submissions which relate to other exemption provisions and the public interest. RTÉ has correctly stated that the 2000 Regulations do not contain a public interest balancing test so I will not consider such arguments in this section of the decision.
Analysis
Before I address RTÉ’s arguments, I believe it is worth restating the nature of the information at issue in this case. The disclosure of the information at issue would involve the disclosure of the precise amount paid to each identified Fair City script writer each year between 2015 and the date of the request, and the overall total amount paid by RTÉ for script writing services each year.
The 2000 Regulations provide that RTÉ is subject to the provisions of the FOI Act in respect of the finance function, with the exclusion of certain matter specified in Schedule 3. While I fully accept, pursuant to the judgment of O’Caoimh J. inRTÉ v The Information Commissioner , that 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 the recording and payment of costs by RTÉ in respect of the provision of script writing services for Fair City comprises the exercise by RTÉ of a finance function. Accordingly, the question I must consider is whether the information sought concerns any of the matters specified in Schedule 3.4. 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.
The nature of the information that was at issue inRTÉ v The Information Commissioner is an important factor in considering the wider applicability of the High Court’s findings to the particular circumstances of this case. The information in question comprised data that was used to inform RTÉ’s editorial decision making on broadcasting during an election. Specifically, it was data collected on the amount of broadcast time allocated to each political party during the general election campaign of 2002. Under section 18(1) of the Broadcasting Authority Act 1960 as amended (the 1960 Act), RTÉ is required to maintain impartiality in the broadcasting of certain matters. In his decision, the then-Commissioner drew a distinction between the process of making editorial decisions and the data or information on which such a process relies. He found that Schedule 3.4. did not serve to exclude the information from Schedule 2.
The Court found that it was clear from the reading of Schedule 3 that the matters sought to be excluded from Schedule 2 were programme related functions. It found that compliance with section 18 of the 1960 Act necessarily involves the process of making editorial decisions concerning programme contents and must include programme planning and final pre-transmission editorial decisions. It found that in so far as the information was gathered for RTÉ, this was a gathering of data for the purpose of achieving the impartiality required by the 1960 Act and that this, of itself, involves programme content purposes in so far as the impartiality in question was sought to be achieved. It further found that the process engaged in was one which can be stated to have included internal review and analysis of programmes or schedule of programmes. It found that the Commissioner erred in law in his construction of the Regulations when applied to the facts of the case.
The information sought in this case is of a type that is wholly distinguishable from the type of information that was considered by the High Court inRTÉ v The Information Commissioner . As I have outlined above, the information in this case comprises information on the payment of costs by RTÉ in respect of the provision of script writing services. It is not, in my view, information that concerns the editorial decision making process concerning programme or programme schedule content. It is simply financial information relating to payments made by RTÉ. It seems to me that if I was to accept RTÉ’s arguments that the exclusion in Schedule 3.4 should be given such a broad interpretation as to incorporate such financial information, then it would be very difficult to identify any information relating to the finance function that would fall to be considered as information concerning RTÉ’s finance functions that is not excluded pursuant to Schedule 3.4. Moreover, given the breadth of functions included in Schedule 2, it seems to me that such broad interpretations of the exclusions in Schedule 3 would effectively place the vast majority, if not all, of RTÉ’s operations beyond the reach of the FOI Act. I am not at all satisfied that this was the intent of the Minister when making the relevant regulations, nor can it be regarded, in my view, as a logical consequence of the O’Caoimh judgment.
Moreover, while I have noted RTÉ’s comments on the extent of the exclusion available to the BBC under UK FOI legislation and the views of the Courts in the UK as to the close parallels between the two regimes, I must interpret the 2000 Regulations based on the language contained in those Regulations. Similarly, the definition of “editorial decision” as set out in the relevant EU Regulation referenced by RTÉ does not mean that the information at issue in this case must be deemed to concern the process of making editorial decisions concerning programme or programme schedule content.
In sum, I find that RTÉ was not justified in refusing the request on the ground that the information sought falls outside the scope of the FOI Act by virtue of the provisions of the 2000 Regulations. I will therefore proceed to consider the exemption provisions relied on to refuse the request.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of third party personal information. Section 37(2) provides that section 37(1) does not apply in certain circumstances. 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.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to an 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute 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.
Section 2 also provides that certain information is excluded from the definition of personal information, including:
(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.
Submissions
RTÉ’s position is that the information sought is personal information relating to individuals such that section 37 applies. It said that the individuals engaged are freelance writers and benefit from the Artist’s Exemption scheme. It said that the script writers listed are individuals, not large corporate entities. It said that publication of the information would involve the publication “to the world at large” of their financial dealings with RTÉ. It referenced the Commissioner’s acknowledgement of the importance of privacy for individuals.
In respect of section 2, paragraph (II), above, it said that the Commissioner has often stated that section 37 does not deprive public servants of the right to privacy generally. It said that while this Office has previously released information about the salary bands of individuals, it has not, to RTÉ’s knowledge, directed the release of the actual sums earned by individuals. It said that this Office has previously determined that the exclusion to the definition of personal information is designed to ensure that the work of individuals, either staff or contractors, cannot be exempt from FOI by citing “personal information”. It again referenced previous decisions of the Commissioner and findings that the actual salary of individual members of staff of a public body is personal information. It said that the same criteria apply to the individuals who are the subject matter of this request.
RTÉ noted that section 37 is a mandatory exemption and that a public body must refuse to release the information sought. It made submissions in respect of the public interest test at section 37(5), which I will consider below.
While the applicant referenced the exemption in his application to this Office, his submissions centred on the public interest in release of the information. He did not appear to dispute the position that the information at issue comprises personal information.
In light of the nature of the information at issue and the submissions received, the Investigator notified the named script writers of the review and provided them with an opportunity to make submissions. RTÉ provided this Office with contact email addresses and certain relevant notes. It said that one named individual was incorrectly listed as a script writer. It said that it was unable to locate contact details in respect of two other individuals. It said that this was possibly due to a change in IT systems within RTÉ. I am satisfied that RTÉ took reasonable steps to locate contact details for the individuals in question. Finally, it said that it received failed delivery notifications in respect of the email addresses of two other individuals when it attempted to contact them. This Office sent notifications to the relevant email addresses and it appears that the communications issued though I note that neither individual responded. Notwithstanding the fact that certain individuals may not have received a notification, I am satisfied that robust responses and substantive submissions were received by such a number of other parties as to provide this Office with an appropriate insight into the perspectives of the script writers concerned.
Just under half of the individuals notified made substantive submissions in response (one individual confirmed receipt and raised a number of queries but did not make a substantive submission). One of the respondents said that they had no objection to release. Another respondent made a number of points which they said they hoped “would be included along with the data requested”. The respondent said that payments from RTÉ include VAT at 23% which is paid back in full to Revenue. They said that they do not work for RTÉ and wanted to highlight the fact that they are freelance and do not work for the body. Finally, they said that they have not been given a pay rise since 2006. All of the other respondents objected to release.
Given the nature and number of responses, I do not intend to detail the specific contents of each submission, though I confirm that I have considered each in full. I note that a number of respondents made similar, if not identical, submissions. I will summarise the relevant themes emerging from the submissions received below. Many of the submissions received focused on the perceived harms which would flow from release of the information and relate more to the section 36 exemptions than section 37. A number of respondents referenced the freelance nature of their work. It was noted that each commission to write an episode is a new contract and that the number of people seeking work is far greater than the amount of work available.
It was argued that the respondents had not seen the information in question and had no way of knowing if the information provided by RTÉ was correct. It was argued that the public release of incorrect information could be prejudicial to the reputation and careers of freelance writers. I should note that in the notification letter issued to the parties, they were directed to contact RTÉ’s FOI Liaison Officer with any queries regarding the information at issue or the FOI body’s position on the matter. It was also argued that the respondents had no way of knowing whether the correct context will be provided alongside publication of the financial information at issue. They referenced the number of episodes written and complex re-writes which may have been required.
The risk of reputational damage was referenced; certain respondents referred to negative and sensationalist headlines. It was argued that release could increase stress levels and impact the quality of work produced. Respondents referenced their right to privacy. Some respondents noted that they had no objection to the release of standard contract terms, rates of payment or the total aggregate costs paid by RTÉ but said that they did not consent to the release of their personal financial information. It was argued that respondents were not informed that such information would be subject to FOI requests.
Analysis
I have carefully considered the submissions made by all parties. It is clear to me that the details of precise payments made to each individual script writer in each relevant year comprises information relating to the financial and employment affairs of the individuals in question. On the matter of whether the exclusion to the definition of personal information in Paragraph (II) as outlined above might apply, I note that the individuals referenced in the record are freelance script writers. They are not staff members of RTÉ. In its submissions, RTÉ provided some background information in respect of its relationship with the individuals in question. It said that a team of script writers is engaged on a freelance basis and that new writers join a ‘stable’ of established script writers. I am satisfied that the individuals concerned are service providers for the purposes of paragraph (II).
The exclusion is intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records relating to the terms of the contract and to the service provided, and to records created by service providers in the course of their work. I am not satisfied that the precise annual payments made to individual script writers qualify as information relating to the terms of the contract or to the service provided. The exclusion does not deprive individual contractors of the right to privacy generally. Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or service provider as a provider of a public service which is subject to oversight, and the privacy rights of those same individuals regarding their private employment and financial affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as their personal financial affairs.
In this case, the information sought comprises the annual figure paid to each script writer for the relevant years. The disclosure of such information would not disclose how many scripts an individual worked on or any other breakdown in respect of the annual figure. It does not include any substantive information in respect of the services being provided or the terms of any contract. I accept that the details of the precise payments made to relevant script writers in any particular year relates to their personal financial affairs. I am satisfied that such details cannot reasonably be described as information relating to the service or the terms of the contract. I find, therefore, that the information sought relating to the individual script writers is personal information relating to the individuals concerned as the exclusion to the definition of personal information does not apply. It follows, therefore, that section 37(1) applies in respect of that information.
However, I do not accept that section 37(1) applies to exempt details of how much RTÉ spent overall on paying for script writers for the production Fair City for the years in question. As outlined above, RTÉ’s submissions in respect of section 37 centre on the payments made to individuals, rather than the cumulative annual totals. For the information to comprise personal information, it must be information about an identifiable individual. I do not accept that the release of details of the overall expenditure each year would involve the disclosure of personal information about identifiable individuals. I am satisfied that section 37(1) does not serve to exempt that information.
As I have found section 37(1) to apply to details of payments made to each individual script writer over the relevant years, I must proceed to consider whether the other provisions of the section serve to disapply subsection (1).
Section 37(2) and 37(5)
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. No argument has been made that any of those circumstances arise in this case, nor do I consider that they do.
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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, I would note that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. Nevertheless, it is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. 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 generally.
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.
In respect of the public interest test, RTÉ said that section 37 is a mandatory exemption and that a public body must refuse to release relevant information sought. It said that the issue, as determined by the courts and this Office, is not what interests the public but whether the overall public good would be better served by releasing the information or by withholding it. It provided details of the public interest factors in favour of and against release which it considered. It acknowledged that the spending of public funds and accounting for same is always a matter of public interest. It said that given recent events at the national broadcaster, it is appropriate that the public are reassured that money is spent correctly. In favour of withholding the information, it said that the public interest threshold is not what interests the public but where the overall good of society lies. It said that it is difficult to see the societal benefits of releasing the actual earnings of individuals who are engaged by a public body. It referenced the eNet case above and a second Supreme Court decision inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It said that a mandatory exemption cannot be overturned merely on the basis of the public interest. It referenced the Supreme Court’s finding that there must be specific, fact-based and cogent reasons to do so. It said that its view is that no such reasons exist in this case and that the exemption should therefore apply.
In his application to this Office, the applicant advanced a particular public interest argument. He said that he received information that alleges that RTÉ management may have been awarding contracts for script writing services to familial relations and that these script writers may have been heavily favoured in respect of the amount and value of the contracts that have been awarded over a number of years. He said that he is seeking the records as part of an investigation into serious allegations of impropriety. He said that there is a clear public interest in there being transparency over financial and contractual arrangements that involve the use of public money. He argued that this public interest weighs in favour of release. He noted that RTÉ has a Code of Business Conduct that states: “A conflict of interest may arise if an individual engages in any activities, or advances any personal interests, at the expense of RTÉ's interests. Members of staff are therefore required to manage conflicts of interest to ensure that the reputation and good name of RTÉ, and its staff, is maintained and to seek prior approval where this is necessary.” He also said that RTÉ employs a Fair Trading Officer “to ensure that its editorial integrity or independence is not conflicted or undermined by any use or association with the RTÉ brand and that its reputation is protected at all times”.
RTÉ briefly addressed the applicant’s assertions in its submissions. It said that European and domestic legislation recognises the public interest in protecting the right to privacy of individuals. It referenced the Long Title to the FOI Act and the Commissioner’s position that privacy rights can only be set aside where the public interest is “sufficiently strong to outweigh the public interest in protecting privacy”. It said that it was “aware of the issues which the requester raised” but that it was “entirely satisfied there are no matters of concern”.
During the review, this Office notified the applicant of RTÉ’s reliance on section 36 of the FOI Act and invited submissions in respect of the exemption. The applicant made further public interest arguments which I believe are also relevant to the consideration of section 37. He said that the costs associated with the production of Fair City have been the subject of prolonged and legitimate public interest, including recent commentary by the Director General on the future strategy of development of the show, including moving the production from its current set as a cost saving measure. He noted that RTÉ has regularly released records relating to the costs associated with programmes in response to FOI requests and has done so in the case of Fair City actors payment levels. He referenced a particular media article and statements therein relating to script writer payments and rates per episode. He said that RTÉ has been the subject of repeated public interest reporting in light of a succession of spending and salary scandals. He said that this has resulted in demands for, and promises of, increased financial transparency on how public funds are being spent by the national state broadcaster. He again reiterated the arguments made in his application in respect of certain “serious allegations of impropriety”. He said that the improper allocation of public monies by RTÉ has been a significant factor in the recent public controversies faced by the broadcaster. In respect of policies and procedures in place to address potential conflicts of interest, he referenced RTÉ’s Disclosure of Interest Policy.
In respect of the positive public interest which would be served by disclosure, he said that his request seeks to identify who is in receipt of public funds for commercial work in respect of RTÉ’s flagship drama and the amount of public money they had received. He said that identification of the allocation of public funds is clearly a matter of public interest. He said that the public interest is intensified where there is an allegation that public funds have been invested in breach of RTÉ’s public interest policies and obligations, against the backdrop of recent scandals. He said that the public have previously been informed about the remuneration of script writers on Fair City, including the amount paid per episode and the distribution of fees across the script writing team. He argued that there is therefore a public interest in understanding how the fee levels and distribution ratio compare now.
A number of the third party respondents made submissions which I consider relevant to the public interest test at section 37(5). One respondent said that they accepted that there is a legitimate public interest in the Fair City budget and even the broad details of the writing budget. However, they queried whether the public interest is in the release of financial information relating to individuals. They queried whether any member of the public could name script writers or describe what they do. They referred to a high profile RTÉ presenter and noted that people know that individual and can assess the value of their work. They said that this is not the case with script writers, where their task is to subsume their work into the style and ethos of an existing show. They said that the publication of the information would damage their capacity for future earnings for no balancing outcome. They said that the publication of earnings without any identifying details would serve the public interest just as well. It was argued that there is little value to the public in a list of unfamiliar names but such a list would have clear and lasting impacts in the individuals’ professional lives. The respondent said that the harms outweigh any possible public benefit in knowing the earnings of individuals.
Other respondents said that clear and transparent pay scales are in place and that such rates are publically available. It was argued that the public interest relates to the amounts of money spent, not how much named individuals are paid. It was argued that media reports have resulted in curtailed spending on Irish productions and investment in development. Reference was made to the tone of articles written about writer pay levels and it was said that such reporting was designed to stir up outrage with no understanding of the months of work and the long hours required.
As noted above, the protection afforded to privacy rights in the FOI Act is strong. 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. I have carefully considered the submissions received. I accept that there is a public interest in openness and transparency in transactions or agreements involving the finances of public bodies. There is a public interest in the proper administration of public contracts and ensuring that value is obtained. However, I have also carefully considered the nature of the information at issue and the public interest that would be served by its disclosure. In respect of the public interests I have identified, I consider that the release of the overall cumulative amounts paid to script writers by RTÉ serves such interests. I do not consider that the release of the individual breakdowns furthers the interests to such an extent as to outweigh the public interest in the protection of the privacy rights of the individuals concerned.
I have also considered the specific arguments and allegations of impropriety advanced by the applicant. There is a public interest in ensuring that relevant standards of probity and propriety are met by public bodies and in ensuring that such bodies manage conflicts of interest which might arise. In respect of the applicant’s submissions, I note that the disclosure of the information sought would not involve the disclosure of the number of episodes a script writer contributed to. I note, in any event, that RTÉ said that the names of the individuals are in the public domain as they feature on programme credits.
The applicant has referenced the previous release of script writer pool earnings per episode. While he argued that there is a public interest in understanding how the fee levels and distribution ratio compare now, I note that he has not sought that information. Rather, he has sought financial information relating to named individuals. I do accept that releasing such information would enable the applicant to assess who exactly was contracted by RTÉ and how much precisely they were paid over the course of a year. However, the applicant has himself referenced various mechanisms which RTÉ has in place to address potential conflicts of interest. These include a Code of Business Conduct, the employment of a Fair Trading Officer and a Disclosure of Interest Policy. It seems to me that the existence of such mechanisms serves the public interest advanced by the applicant.
The question I must consider, therefore, is whether the public interest in further enhancing transparency and accountability by releasing the information sought in this case is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the freelance script writers named in the record. In my view, it is not. I do not accept that release of the information at issue would serve the public interest in ensuring standards of probity and propriety are met to such an extent that it would outweigh the public interest in protecting the right to privacy of the individuals to whom the information relates.
In my view, the release of the cumulative script writing expenditure and the protection of individual financial information strikes the balance between transparency in respect of public spending and the public interest reflected in section 37. I find that the public interest would, on balance, be better served by withholding access to details of payments made to each individual script writer over the relevant years. Accordingly, I find that the Department was justified in refusing access, under section 37(1), to the information in question.
As I have found section 37 to apply to detail of the individual payments made, I am only required to consider the applicability of section 36(1) to the remaining information, namely the overall total amounts RTÉ spent on paying for script writers for the production Fair City from 2015 to the date of his request.
Section 36(1)(b) provides for the refusal of a request where the disclosure of the record sought could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 36(1)(c) provides for the refusal of a request where the disclosure of the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The disclosure of the information at issue would not involve the disclosure of information relating to any one identifiable individual. In such circumstances, I fail to see how its release could possibly give rise to any of the harms outlined in section 36(1)(b) or 36(1)(c), nor has RTÉ or any of the relevant third parties explained how such harms might arise. I find that RTÉ has not justified its decision to refuse access to the overall amounts spent each year under section 36(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary RTÉ’s decision. I find that it was justified in refusing access, under section 37(1) of the FOI Act, to details of payments made to each individual script writer for the production Fair City from 2015 to the date of the applicant’s request. However, I find that it was not justified in refusing access, under sections 36 and/or 37, to the overall amounts paid each year and I direct the release of that information.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator