Decision
Mr Ken Foxe, Right to Know and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: OIC-135865-D2R7K5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-135865-D2R7K5
Published on
Whether Revenue was justified in refusing access to records relating to its involvement in the administration of the TV licence system on the basis of sections 28(1)(a), 28(1)(c) and 30(1)(a) of the FOI Act
2 November 2023
In a request dated 3 January 2023, the applicant sought access to “copies of any correspondence between Revenue and the Department of Finance with regard to proposals for Revenue to become involved in collection of the TV licence”. He also sought copies of any reports, submissions, memos or discussion documents prepared for the Chair of Revenue with regard to the above. The applicant specified that the request covered the calendar year 2022.
In a decision dated 31 January 2023, Revenue refused access to the 12 records it identified as falling within the scope of the request, under sections 28(1)(a), 28(1)(c) and 29(1) of the FOI Act. On 2 February 2023, the applicant sought an internal review of Revenue’s decision. Among other things, he argued that section 29 did not apply as the deliberative process in question had ended.
On 23 February 2023, Revenue varied its decision. It said one of the records originally identified did not fall within the scope of the request and that three others were excluded as they were identical to other records identified. It said it had identified three further records which fell within the scope of the request and included those three records on a revised schedule. It refused access to all 11 records under sections 28(1)(a), 28(1)(c) and 30(1)(a) of the FOI Act. It said that it was no longer relying on section 29(1) in support of its decision to refuse the request. On 27 February 2023, the applicant applied to this Office for a review of Revenue’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 correspondence between the parties and to the submissions made by Revenue. I note that in his application to this Office, the applicant said he wished to reiterate the points made in his request for internal review and did not intend to make further submissions. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by Revenue in the revised schedule it provided with its internal review decision.
Revenue identified 11 records as coming within the scope of the request at internal review stage. It refused access to the records in full. During the course of the review, the Investigator identified certain limited information in the records which she deemed to constitute personal information. She brought this matter to the attention of the applicant and he agreed to remove such information from the scope of his request. As such, I am satisfied that a mobile phone number in record 1 is outside the scope of the applicant’s request.
This review is concerned solely with whether Revenue was justified in its decision to refuse access to the 11 records at issue under sections 28(1)(a), 28(1)(c) and 30(1)(a) of the FOI Act.
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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is limited.
It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on Revenue to satisfy this Office that its decision to refuse access to the records sought was justified.
Finally, 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 the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in the FOI body’s decisions on the request.
The records at issue
While I am limited in the extent to which I can describe their contents, I believe it would be useful to briefly outline the nature of the records in question. In its submissions to this Office, Revenue said that the records concern communications between the Department of Finance and Revenue in relation to a proposal that Revenue might collect the TV licence fee.
Record 1 is a copy of email correspondence from the Department of Finance to Revenue. Record 1A is an attachment to the above email and comprises a draft memorandum for the Government. Record 1B is a further attachment and comprises a “confidential draft” of the final report of the Future of Media Commission. Record 2 is a draft discussion paper on options for future funding of media for input to a Senior Official Group (SOG). Records 3, 4, and 5 comprise drafts of joint observations of the Department of Finance and Revenue. Revenue said the records were prepared in response to record 2. Records 6 and 7 comprise email correspondence between the Department of Finance and Revenue. Record 7a is an attachment to the above emails and comprises a draft paper for Ministers. Record 8 is a document outlining the Department of Finance position on options considered at the SOG.
Section 28(1)(a)
Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. It is not a harm-based exemption such that release of a record would lead to particular consequences specified in the particular provision. There is no ‘public interest override’ in this exemption. The section provides for a class based exemption of certain records regardless of their contents. Previous decisions by the Information Commissioner have accepted that section 28(1)(a) applies to records such as Memoranda for Government and preliminary or draft versions of the whole or part of such documents.
Section 28(1)(a) is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney General for consideration and its creation for that purpose. For section 28(1)(a) to apply, a record must fulfil the following three criteria:
Revenue has sought to apply section 28(1)(a) to all 11 records. It said that all of the records relate to correspondence between the Department of Finance and Revenue on the topic of future media funding in response to discussions at “senior official and ministerial level”. It said that the records were submitted by the Minister for Finance to the Department of the Taoiseach. It said that the records relate to correspondence on the topic of future media funding which was to inform the Government of the available funding options and the “pros and cons of same”. It said that the records were not created for any other purpose.
In his application to Revenue for internal review, the applicant said that while he accepts that some records may be exempt under section 28(1), it seemed clear that others are not exempt. He said that it is clear from the titles of some of the records that while they may concern a Government decision, they were not created for the purpose of submission to Government. He said it seems highly unlikely that some of these records would ever have been submitted to Government. He also referenced a previous decision of this Office (OIC-95391) which concerned records relating to the work of a Senior Officials Group.
In its submissions, Revenue said that records 1 and 1B contain information that was to be submitted to Government as part of a draft memorandum for Government at record 1A. I am satisfied that record 1A meets the requirements of section 28(1)(a), being a draft memorandum for Government.
Given that section 28(6) provides that “record” includes a preliminary or other draft of the whole or part of the material contained in the record, I am also satisfied that section 28(1)(a) applies to part of record 1, namely the text after “options” in the first paragraph and before “Both our predecessors…”. The text in question is a draft of part of the material contained in record 1A.
However, I am not satisfied that the remainder of record 1, comprising a covering email from the Department of Finance to Revenue, meets the requirements of section 28(1)(a). The fact that the record may contain information that is also contained in a record to which section 28(1)(a) applies does not, of itself, mean that the entire record also qualifies for exemption under section 28(1)(a). The record was not prepared in the context of the process of drafting the memorandum for Government. Rather, it was prepared in the context of engagements between the Department and Revenue in connection with an appearance by a member of staff of the Department before a Senior Officials Group on a related matter. As such, I find that it is not a record that has been, or is/was proposed to be, submitted to the Government for its consideration by a Minister. I find that section 28(1)(a) does not apply to record 1, apart from the relevant text I have identified above.
Neither am I satisfied that record 1B meets the requirements of section 28(1)(a). As noted, the document is a draft of a report that has been published by the Future of Media Commission. In its submissions, Revenue said that it understands that the report may be very similar, if not identical, to the final published paper. It said that as the draft was submitted as part of a memorandum to Government, it meets the requirements of subsection (a).
The record at issue is a draft of a report prepared by the Future of Media Commission, an independent body that was established by the Government and tasked with making recommendations on sustainable public funding mechanisms for the media sector. In my view, the draft report was not created for the purpose of submission to the Government for consideration. Rather the report was created for the purpose of meeting the Terms of Reference of the Future of Media Commission, which tasked the Commission with drafting such a report. The purpose of the creation of the report was to meet the terms of reference establishing the Commission, not for submission to the Government. On that basis, I find that section 28(1)(a) does not apply to record 1B.
In its submissions, Revenue said that record 2 refers to a ministerial meeting that took place on 21 February 2022 on the Future of Media Commission report, where several options for the future funding of media were discussed, and that these options are outlined in the record. It said the record also contains a request by the Taoiseach to give further consideration to options for a future funding model. Revenue explained that the ministerial meeting “was a meeting of a subset of Cabinet, namely Minister plus 1 from Departments of Finance, Public Expenditure & Reform, Taoiseach, Enterprise Trade & Employment and Tourism, Culture, Arts, Gaeltacht, Sport and Media”.
Record 2 is entitled “Draft Discussion Paper as Input to SOG Discussion” and describes its intent as “an input to Senior Official Group discussions” following on from the ministerial meeting. There is no suggestion that the record was ever submitted, or proposed to be submitted, to the Government for its consideration by a Minister of the Government or the Attorney General. I find that section 28(1)(a) does not apply to record 2.
Revenue said records 3, 4 and 5 are drafts of the same document, with Revenue and the Department of Finance providing different observations on the drafts. It said the records were prepared in response to the discussion paper at record 2 and that they “would form the basis of material to be submitted to Government”. This Office sought further submissions in respect of the intended final recipient of the draft papers. In response, Revenue said that on foot of the meeting of 21 February 2022, the Departments were tasked with seeking information and observations and exploring options in order to inform further documents to be sent to the Taoiseach for consideration in advance of further ministerial meetings on a particular matter. It said that records 3, 4 and 5 were drafted as part of this process.
The Commissioner has previously accepted that submissions from Ministers and/or Departments made in response to another Department’s invitation for observations on a draft Memorandum for Government are exempt under section 28(1)(a). In doing so, the Commissioner has had regard to the Cabinet Handbook which contains instructions for the preparation and submission of memoranda for Government. However, while records 3 to 5 contain joint observations of the Department of Finance and Revenue, they are not observations on a draft Memorandum for Government. Rather they are observations on the discussion paper at record 2. The fact that some or all of the information in the records may ultimately have been included in a Memorandum for Government does not mean that the records themselves were submitted, or were proposed to be submitted, to the Government. I find that section 28(1)(a) does not apply to records 3 to 5.
Revenue described records 6, 7 and 7A as containing “emails and draft papers which were to be sent to the Department of the Taoiseach and then for consideration by Ministers”. Records 6 and 7 comprise emails while record 7A is entitled “Draft Paper for Ministers”. In its submissions, Revenue said that Departments were tasked with seeking observations “in order to inform further information to be sent to the Taoiseach for consideration in advance of further Ministerial meetings on the matter”. It said that the Department of the Taoiseach acts as the secretariat for these ministerial meetings and the document was “drafted as part of this process”. It said that the record was sent to the Department of the Taoiseach in its capacity as Cabinet Secretariat.
Record 7A is not a record that was submitted, or was proposed to be submitted, to the Government for its consideration by a Minister of the Government. Accordingly, I find that section 28(1)(a) cannot apply. Moreover, as records 6 and 7 do not contain observations on a draft Memorandum for Government but instead concern record 7A, I find that section 28(1)(a) does not apply.
Revenue described record 8 as a Department of Finance paper with views on the options considered at the Senior Officials Group. It is entitled “Options for Future Funding of Media – D/Finance position on options considered at SOG”. Revenue said that on foot of the ministerial meeting of 21 February 2022, the Departments were tasked with seeking information and observations and exploring options in order to inform further information to be sent to the Taoiseach for consideration in advance of further ministerial meetings on the matter. It said record 8 was drafted as part of this process. I find that record 8 is not a record that was submitted, or was proposed to be submitted, to the Government for its consideration by a Minister of the Government. I find that section 28(1)(a) does not apply.
In sum, I find that section 28(1)(a) applies only to record 1A in full and to part of record 1. However, section 28(1) is subject to exceptions which are provided for in section 28(3). That section provides that section 28(1) does not apply to a record –
a. if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
b. if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.
I am satisfied that record 1A relates to a decision of the Government that has been published to the general public and that section 28(3)(a) falls to be considered. The record is concerned with the report of the Future of Media Commission. I note that the report was published on 12 July 2022. The report contained 50 recommendations. According to the Implementation Strategy and Action Plan published by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media, the Government accepted, in principle, 49 of the 50 recommendations at its meeting on 12 July 2022. The Government also agreed to an alternative approach to the Commission’s recommendation in respect of a future public funding model for media underpinned by Exchequer funding. The Government mandated the establishment of a Technical Working Group to instead consider the detailed design of a reformed and enhanced TV licence system as a basis for future funding of the sector.
I am satisfied that the relevant part of record 1 to which I have found section 28(1)(a) to apply is not factual information. On the matter of whether record 1A contains factual information relating to the Government’s decision, Revenue said that the records at issue contain some factual information relating to a decision of the Government that has been published to the general public, i.e. that the Dept. of Finance and Revenue did not support the idea of Revenue collecting the TV licence. However, it argued that they also contain information relating to the reasoning for the decision that was not published. It did not identify any specific information as being appropriate for release pursuant to section 28(3)(a).
The term factual information is defined in section 2 of the FOI Act as including information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner takes the view that the use of the word "includes" in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
Much of the information contained in record 1A comprises an account of the contents of the report of the Future of Media Commission., the vast majority of which, in my view, is a factual recounting of that information. I find that section 28(1)(a) does not apply, by virtue of the provisions of section 28(3)(a), to the following factual information contained in the record:
Section 28(1)(c)
Section 28(1)(c) provides that an FOI body may refuse to grant an FOI request if the record concerned contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government, for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government. In order for the section to apply,
Section 28(1)(c) is concerned with the contents and use of the record. The category of records covered by this exemption would include departmental briefing notes for individual ministers attending a Government meeting and notes prepared for the Secretary to the Government for the purposes of such a meeting and the agenda of such a meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the records would cease to have a purposeful existence after the conclusion of the meeting. The mere fact that a record contains information for discussion at a meeting of the Government does not, of itself, mean that section 28(1)(c) applies.
Revenue has sought to apply section 28(1)(c) to all 11 records. In its submissions, it again said that the records relate to correspondence between the Department and Revenue on the topic of future media funding in response to discussions at senior official and ministerial level. It said the records were submitted to the Department of the Taoiseach and that they would form the basis of discussions on the topic at cabinet. In response to this Office’s request that Revenue show that the information is or was for use solely for the purpose of the transaction of any business of the Government at a meeting of the Government, Revenue repeated the above submission. In essence, its position appears to be that the records are exempt under section 28(1)(c) on the basis that they would form the basis of discussions on the topic in question at cabinet.
I am not satisfied that section 28(1)(c) applies to any of the records at issue. As I have outlined above, record 1 was prepared in relation to an appearance by a member of staff of the Department before a Senior Officials Group in connection with the matter of the future funding of the media. Neither that record, nor attachments 1A or 1B, contain information for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government, for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
Record 2 was intended as an input to Senior Official Group discussions following on from the ministerial meeting on 21 February 2022 on the Future of Media Commission report, while records 3, 4, and 5 comprise observations on record 2. As such, I am satisfied that these records do not contain information for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government, for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
Revenue described records 6, 7 and 7A as containing “emails and draft papers which were to be sent to the Department of the Taoiseach and then for consideration by Ministers”. It is clear from this description alone that they do not contain information for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government, for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
Record 8 was drafted as part of a response to the task of seeking information and observations and exploring options in order to inform further information to be sent to the Taoiseach for consideration in advance of further ministerial meetings on the matter of the future funding of media. As such, I am satisfied that it does not contain information for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government, for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
In summary, therefore, I find that section 28(1)(c) does not apply to any of the records at issue.
Section 28(2)
While Revenue did not cite section 28(2) as a ground for its refusal of the request, I deem it appropriate to consider the applicability of the exemption to the records at issue, given the fact that the exemption in question is mandatory, given its purpose, and given the nature of a small amount of information contained within some of the records at issue. Section 28(2) provides for the mandatory refusal of a request if the record concerned—
a. contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and
b. is not a record—
(i) referred to in paragraph (a) or (c) of subsection (1), or
(ii) by which a decision of the Government is published to the general public by or on behalf of the Government.
The exemption is concerned with the protection of Cabinet discussions or deliberations at Government meetings. Article 28.4.3° of the Constitution provides for the confidentiality of discussions at meetings of the Government.
Section 28(6) defines ‘Government’ as including a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of members of the Government or one or more members of the Government with one or more Ministers of State and/or the Attorney General.
As noted above, a number of the records at issue reference a certain ministerial meeting which Revenue described as a meeting of a “subset of Cabinet”. Having considered the contents of the records, this Office sought further submissions from Revenue as to whether it considered that the meeting referenced constituted a meeting of a committee of the Government. The Investigator requested that Revenue provide evidence to support its position, including evidence of a Government decision establishing the relevant committee. In response, Revenue said it consulted with the Department of Finance who identified the meeting attendees and said that the meeting was “in cabinet committee format”.
This Office subsequently sought clarification from the Department of Finance on the nature of the committee in question. The Department provided this Office with a copy of the invitation to the relevant meeting which issued from the Department of the Taoiseach. Again, the invitation referred to the meeting following “Cabinet Committee format”. The Department of Finance engaged with colleagues in the Department of the Taoiseach and a further response issued. It said that in terms of format, composition, and agenda, the meeting was “tantamount to an ad-hoc Cabinet Committee meeting convened to consider a proposed decision for Cabinet”. It also said that the sub-group was “not a formally established Cabinet Committee”. It said that this reflected the unique nature of the issue for discussion which did not map onto existing Cabinet Committee structures.
I have carefully considered the submissions made by Revenue and the Department of Finance. I do not accept that a meeting being “tantamount” to a committee meeting is sufficient for it to be captured by the definition of a Government meeting for the purposes of section 28(2). While noting the existence of ad hoc Cabinet committees and references to same in the Cabinet Handbook, I also note that the same document states that the establishment by the Government of a Cabinet committee should be recorded, formally or informally. Section 28(6) of the FOI Act also provides that such committees should be appointed by the Government. Neither Revenue nor the Department of Finance have provided evidence of the establishment of a relevant Cabinet committee, despite specific requests to that effect. Moreover, as stated, the forwarded response from the Department of the Taoiseach acknowledged that the committee was “not a formally established Cabinet Committee”.
It seems to me that the meeting merely followed the format of a cabinet committee meeting. I again note that Revenue has not claimed that section 28(2) serves to exempt any information in the records. Having carefully considered the records and the submissions received, I am not satisfied that the ministerial meeting referenced in the records was a meeting of a committee of Government. Accordingly, I am not satisfied that section 28(2) serves to exempt information relating to that ministerial meeting which is contained in the relevant records.
Section 30(1)(a)
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.
Section 30(2) provides that subsection (1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
At internal review stage, Revenue indicated that it was relying on section 30(1)(a) to refuse access to seven of the records in question. In its submissions to this Office in respect of the application of the exemption, it referred to “all records with the exception of record 6”. As such, I will consider the application of section 30(1)(a) to the ten records identified. As the applicant was aware of Revenue’s reliance on section 30(1)(a), I am satisfied that he has had an adequate opportunity to make submissions in respect of the matter. I note that no submissions have been received to date.
In its submissions, Revenue said that its main function is to collect taxes and duties, which provides funds to the Exchequer to deliver public services. It said its reputation for efficiency and expertise is fundamental in ensuring that taxpayers are tax compliant and that they co-operate with Revenue. It said tax enquiries, investigations and audits serve to protect public finances by ensuring that all taxpayers comply with their tax obligations as required by law. It said the records contain information on potential difficulties in respect of a particular revenue collection methodology. It said that revealing the potential difficulties to undertake a similar revenue collection methodology in the future would prejudice the effectiveness of any subsequent enquiries, investigations and audits. It said that this could lead to widespread evasion, in turn impacting on public finances. It said that release could undermine public confidence in Revenue’s ability to effectively collect all taxes and duties owed to the State. It argued that releasing records that identify potential difficulties could be very damaging to its ability to carry out its core functions, which would ultimately limit the ability of the State to fund public services.
I accept that the records at issue contain details of potential difficulties/challenges for Revenue in respect of a particular revenue collection methodology. In essence, Revenue’s argument is that the release of such information would prejudice the effectiveness of any subsequent enquiries, investigations and audits. However, it has not explained how such prejudice might arise. The records at issue do not disclose any specific detail in respect of the functions in question or the procedures or methods employed by Revenue for their conduct.
It seems to me that Revenue’s primary concern is that disclosure of the existence of difficulties with a particular collection methodology could result in evasion. While I accept this to be an understandable concern, Revenue has not explained how the potential for increased evasion could reasonably be expected to prejudice its enquiries, investigations and audits or the procedures or methods employed for their conduct. In any event, it seems to me that Revenue must have existing policies and procedures aimed at tackling evasion. It is also relevant that the difficulties and challenges outlined in the records are on the basis of Revenue’s current operational procedures and processes. I would fully expect that if Revenue was charged with undertaking a particular collection methodology in the future similar to that identified in the records at issue, steps would first be taken to ensure that it was in a position to do so efficiently and effectively.
Accordingly, I am not satisfied that section 30(1)(a) of the FOI Act applies to any of the records at issue.
I find that Revenue was justified in refusing access to parts of records 1 and 1A under section 28(1)(a) with the exception of factual information therein which I have identified above. I find that Revenue was not justified in refusing access to the remaining records under sections 28(1)(a), 28(1)(c), 28(2), or 30(1)(a) and I direct their release, subject to the redaction of a small amount of personal information which the applicant agreed to exclude from the scope of his request.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Revenue’s decision. While I find that it was justified in refusing access, under section 28(1)(a) of the Act, to part of two records, I find that it was not justified in refusing access to the remaining records and I direct their release. The information falling for protection is as follows:
Record 1:
Record 1A:
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