NNI free footage deal: Appeal of RTE FOI refusal to Information Commissioner

To: The Information Commissioner

17 October 2011

APPLICATION FOR REVIEW OF REFUSAL BY RTÉ TO REFUSE A REQUEST MADE UNDER THE FREEDOM OF INFORMATION ACTS 1997 AND 2003 (THE ACTS)

RTÉ ref.: FOI 2011/051
My client: Simon McGarr

Dear Commissioner,

I act for Simon McGarr, the operator of a website which provides niche commentary and analysis of Irish news and events (tuppenceworth.ie).

Request under the Acts
By letter dated 13 July 2011, I requested, on behalf of my client, copies of the following documentation from RTÉ:

“all documents, records and memoranda concerning, arising out of or relating to the proposal by RTE to license television news reports to members of National Newspapers of Ireland and/or any other party.”

This requested was acknowledged by RTÉ’s freedom of information officer, Peter Feeney, by letter dated 18 July 2011. By letter dated 19 July 2011, the request under the Acts was refused “on the grounds that the records you are seeking are exempt under sections 20 and 27”. This decision was based on the results of “inquiries with RTÉ’s News Division and its Publishing division.” It was further stated that:

“I believe it is in the public interest to permit this proposal of RTÉ’s be considered by the newspaper industry with the usual expectation of confidentiality that applies in such matters.”

By letter dated 12 August 2011 I requested an internal review of this decision in which I stated:

“I am greatly surprised that, as is suggested by your letter, that a decision has been made to refuse my client’s request in full on the basis of responses to general enquiries with RTE’s News Division and Publishing Division.”

I also noted that no schedule of documentation held was furnished and that the decision was made within 24 hours of acknowledging the request. In light of these circumstances I requested that the fee of €75 for conducting the internal review be waived.

By letter dated 8 September 2011, Adrian Moynes of RTÉ notified me that the decision made by Mr Feeney was upheld. A summary of the documentation held by RTÉ and subject to the request was outlined in that letter but a schedule of the documents was not furnished.

Grounds for review
The initial decision made by Mr Feeney appears to have been based on casual inquiries within the organisation and not on the basis of a review or consideration of the documentation in light of the objective requirements of the Acts. It is not credible that a serious consideration of the request was undertaken and this conclusion is supported by the failure to furnish a schedule of documentation. The review provides a summary of the nature of documentation held but again does not furnish a schedule of said documentation nor any specific reasoning to support the refusal.

RTÉ has relied on sections 20 and 27 of the Acts in support of their decisions.

In relation to section 20:

1. It is quite clear from what is publicly known that a decision has already been made by RTE to offer footage for use by NNI members. Therefore it is not at all clear that any deliberative process is underway. It may be that members of the NNI are deliberating the offer or that, to the extent that any specific elements of RTÉ’s offer are outstanding, they relate only to the minor details of implementation. Moreover, from the documentation outlined in Mr Moynes’ letter of 8 September 2011, it appears that no documents have been generated since July.

2. No clear reason has been set out for relying on the discretionary exemption provided under section 20. Indeed, no detail has been provided in relation to the nature of the deliberative process involved. No indication has been given as to how release of the documentation might adversely affect that deliberative process. All that has been stated is that the members of NNI have a “usual expectation of confidentiality”. The documents outlined in Mr Moynes’ letter of 8 September 2011 do not refer to any information in which members of NNI would have an interest in confidentiality.

3. RTÉ has relied on the public interest ground to refuse disclosure. There is no apparent public interest ground for refusing this request. Indeed, there is a strong public interest ground for granting release of the documentation.

4. RTÉ are proposing to offer access to its news footage, the creation of which was funded by the licence fund payment received from the State as part of RTÉ’s public service remit. By limiting its offer to members of the NNI it appears to be favouring one set of commercial entities over others and other commercial entities which are not newspapers, thereby distorting the market for Irish news and current affairs online.

5. For the purposes of European Union law, RTÉ is an emanation of the State and is vulnerable to complaints to the European Commission that it is providing state funded aid to one set of commercial operators in the market over others.

6. In that regard, my client notes that RTÉ has recently been the subject of a complaint by TV3 in relation to the Competition Acts which has resulted in the organisation agreeing to change certain practices in relation to advertising.

7. The public interest is clearly in favour of providing access to the documentation sought so that the issues outlined in paragraphs 4 and 5 can be resolved, so that individuals and media entities (whether commercial or otherwise) be in a position to understand the decision making processes of RTÉ in relation to the use and re-use of materials generated by it and to form an opinion in relation to whether that decision making function is being properly exercised.

In relation to section 27:

8. It is not credible for RTÉ to claim that any of the documentation involved is commercially sensitive. The proposal involved is to provide RTÉ materials to third parties free of charge. In those circumstances, it is inconceivable that the documentation would be of the nature exempted by section 27(1).

9. For the same reasons outlined in relation to section 20, the public interest is best represented by releasing the documentation sought.

10. In addition, the public interest is not best represented by allowing RTÉ to maintain a blanket expectation of privacy in relation to its dealings, particularly in circumstances where no evidence of commercial sensitivity exists.

I request a review of the decision made by RTÉ in relation to this request under the Acts. I enclose copies of the correspondence referred to in this letter along with payment of €150 in respect of the review fee. I look forward to hearing from you.

Yours,

Rossa McMahon
PATRICK G. MCMAHON
Solicitors

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