Whether RTÉ was justified in its decision to refuse to disclose, under section 35(4) of the Act, whether or not records exist relating to the applicant's request for records concerning a possible commercial acquisition

10 December 2020

Background

In a request dated 28 May 2020 the applicant sought access to ‘any records concerning RTÉ’s interest in buying a stake in Maximum Media’.

In a decision dated 29 June 2020 RTÉ refused to confirm the existence or non-existence of relevant records, relying on section 35(4) of the FOI Act. The applicant sought an internal review of that decision and on 28 July 2020 an internal reviewer affirmed the original decision.  On 29 July 2020, the applicant sought a review by this Office of RTÉ’s decision. It is relevant to note that during the course of the review, Maximum Media Network was acquired by a company other than RTÉ.

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 both parties on the matter.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether RTÉ was justified in refusing to confirm the existence or non-existence of records coming within the scope of the applicant's request under section 35(4) of the FOI Act.

Preliminary Matter

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or information as to whether a record exists or does not exist where the body is required by the Act not to disclose whether or not the record exists or does not exist. Accordingly, the extent of the reasons I can give for my decision in this case is severely limited.

Analysis and Findings

The FOI Act contains a number of what are commonly known as refusal to confirm or deny provisions. They allow FOI bodies to refuse to confirm the existence or non-existence of records sought in certain circumstances where confirmation one way or the other would have the precise effect that the various exemptions seek to avoid. However, the use of refusal to confirm or deny provisions is not appropriate where it is the content of the record only that merits protection, as opposed to its existence or non-existence.

Section 35(4) contains one such provision. It requires an FOI body to refuse to confirm the existence or non-existence of records where it considers that disclosing the existence or non-existence of records would have the effect specified in section 35(1).

Section 35(1)(a) protects records containing information given to an FOI body in confidence and on the understanding that the information would be treated by the body as confidential, whose disclosure would be likely to prejudice the giving to the body of further similar information, and where it is important that such information should continue to be given to it.  Section 35(1)(b) provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of duty of confidence provided for by agreement, enactment or otherwise by law.   

For section 35(4) to apply, the following requirements must be satisfied:

(i) the records sought, if they existed, must be of a type that would be exempt from release by virtue of section 35(1) of the FOI Act;
(ii) none of the exceptions to the section 35(1) exemption, contained at sub-sections (2) or (3) of section 35, would apply, and
(iii) the FOI body must be of the view that to state whether or not relevant records exist would, in itself, be prohibited by section 35(1).

Having regard to the precise wording of the applicant’s request, it is reasonable to conclude that the disclosure of whether or not relevant records exist would be likely to disclose whether or not RTÉ had considered buying a stake in Maximum Media and, if it had, whether or not discussions had taken place between the parties on the matter.

In its submission to this Office, RTÉ said that as a dual funded public service media provider, it is statutorily obliged by law (section 114 of the Broadcasting Act 2009) to exploit commercial opportunities.  In furtherance of this, RTÉ engages with other entities to explore the possibility of a commercial arrangement. However, it emphasised that negotiations with possible commercial partners are undertaken in an environment which there is a mutually understood commitment of non-disclosure.  RTÉ further argued that if future potential commercial partners were to believe that understandings of non-disclosure might be breached then this would reasonably be expected to result in even fewer commercial partners willing to engage with RTÉ.  As such RTÉ believes that the provisions of section 35(4) apply in this case. 

On the other hand, the applicant argued that RTÉ has incorrectly relied on the provisions of section 35(4) in this case. He argued that as Maximum Media has now been acquired by a company other than RTÉ, confirmation of the existence or non-existence of records by RTÉ cannot prejudice the future supply of similar information. Furthermore, he argued that RTÉ did not satisfy one of the requirements of section 35(1); namely that it is of importance to RTÉ further similar information should continue to be given, as the company is no longer for sale.  

The applicant also argued that his original request also encompasses any records created by RTÉ in respect of any interest it expressed or was proposing to express in buying a stake in Maximum Media and he argued that such records cannot be said to contain information given in confidence.  Finally, he argued that RTÉ did not properly consider the public interest.  In particular, he argued that there is a clear public interest in establishing if RTÉ expressed an interest in purchasing a stake in Maximum Media given the public funding provided to the broadcaster. He argued that recent references by RTÉ to the precarious nature of its finances further support his argument that the public interest would be better served by the granting of his request than by refusing it.

In essence, RTÉ’s position is that to disclose the existence or non-existence or relevant records would disclose whether or not it had considered buying a stake in Maximum Media and, if it had, whether or not discussions had taken place between the parties on the matter, and that the disclosure of such information would, of itself, disclose information that would be exempt from release under section 35(1).

While I believe I am restricted, by virtue of section 25(3), from explaining why, I accept that the disclosure of the existence or non-existence of relevant records would constitute a breach of confidence within the meaning of section 35(1). I do not consider that the fact that Maximum Media has since been acquired by a third party changes this finding. I am also satisfied that none of the other sub-sections of section 35 would serve to disapply section 35(1).

Accordingly, I find that RTÉ was justified in refusing to disclose to the applicant whether or not records coming within the scope of his request exist.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of RTÉ to refuse to disclose, under section 35(4) of the Act, whether or not records coming within the scope of the applicant's request exist.

Right of Appeal

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