Decision
Mr X and the Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: 130187
Published on
From Office of the Information Commissioner (OIC)
Case number: 130187
Published on
Whether the Revenue has justified its decision to refuse to release certain records to the applicant concerning investigation into his tax affairs, citing section 21(1)(a), section 22(1)(a) and section 26(1)(b) of the FOI Act.
29 September 2014
The applicant made an FOI request to the Revenue on 22 April 2013, seeking copies of records held by its Large Case Division and its Investigations and Prosecutions Division, in relation to his tax affairs for 2005 and 2006. This included all records concerning the section 811 Notice of Opinion issued to him. Each of the Revenue Divisions in question made separate decisions in relation to his request. The decision of the Investigations and Prosecutions Division dated 21 May 2013 decided to release certain records and to withhold others under a variety of exemptions under the FOI Act, cited as follows: section 20(1), section 21(1)(a), section 23(1)(a)(i), section 23(1)(a)(ii), section 26(1)(a), section 26(1)(b) and section 28(1). The decision of the Large Cases Division was dated 22 May 2013, and this decision refused all relevant records, citing section 20(1), section 21(1)(a), section 22(1)(a), section 23(1)(a)(iv), section 26(1)(b) and section 28(1). The applicant sought internal reviews of both decisions by letters dated 27 May 2013 and 28 May 2013 respectively.
A joint decision on both internal review applications was issued by the Revenue on 18 June 2013. This decision affirmed the original decisions, although, in some instances, the reasons for the refusals to release the records were amended.
The applicant by letter dated 25 July 2013, sought a review by the Information Commissioner of the Revenue's decisions
Following correspondence between Mr. Richie Philpott, Investigator, of this Office, and the Revenue, the latter agreed to the release of some additional records in two tranches, and also to the removal of some redactions from certain records.
In carrying out my review, I have had regard to correspondence between the Revenue and the applicant; to contacts between this Office and the Revenue; to contacts between this Office and the applicant and to the "preliminary views" letter sent to the applicant by the Investigator on 18 July 2014. As the applicant responded on 29 July 2014, indicating dissatisfaction with the views expressed, I have decided to conclude the review by way of a formal binding decision. I have also had regard to the provisions of the FOI Act, and the content of the records.
The applicant is represented by tax advisers; for convenience in this decision I refer throughout to the applicant.
The sole issue in this review is whether the Revenue is correct in its decision to refuse access to the remaining records on the basis that they are exempt under the provisions of the FOI Act.
Before dealing with the exemptions claimed by the Revenue, it is important to explain that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I am able to give of some of the records at issue is somewhat limited. I would also draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."
Section 8(4) does not allow this review to have regard to why the applicant is seeking the records although this may be of some relevance to consideration of the public interest where required. It is also relevant that the Courts have found that release of a record under FOI is equivalent to release to the world at large. Furthermore, as this review is being conducted de novo, it takes account of relevant facts and circumstances applying at the date of the decision.
There are, in total, 168 records withheld, either in whole or in part. For clarity, - see appendix attached - I have used the numbering system adopted by the Revenue in the schedule to its own internal review decision. The Revenue has sought to justify the records being withheld under a variety of exemptions. However, after careful examination of the records involved, it appears to me that they can each be considered, in the first instance, under one of the following three exemptions: section 21(1)(a), section 22(1)(a) and section 26(1)(b).
Factual context
I understand that, arising from enquiries made by the Revenue into certain matters, a Revenue investigation into the applicant's tax affairs was initiated. During the course of this investigation, issues arose which are currently under appeal. At this time, Revenue's enquiries into the taxation affairs of the applicant are ongoing. This is a significant fact in this review as the Revenue has refused access to a number of the records on the basis that their release could prejudice ongoing investigations or enquiries.
Section 21(1)(a)
Revenue claimed this exemption applied to 37 records, as listed in the appendix.
Under section 21(1)(a), subject to consideration of the public interest, a head of a public body may refuse to grant a request made under the Act if 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 the public body concerned or the procedures or methods employed for the conduct thereof..."
In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable. However, to satisfy the Commissioner of the reasonableness of the decision, it is essential that the decision maker explain how and why he or she believes release of these particular records will give rise to the harm envisaged.
Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of the tests etc. or that release will prejudice the "procedures or methods employed for the conduct thereof". In previous decisions the Commissioner has found that the use of the word "effectiveness" in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, examination or audit to produce or lead to a result of some kind or the ability of the procedures or methods employed for the conduct of the tests etc. to achieve their purpose.
I have carefully considered each of the records against the factual background of the ongoing audit and accept that, in the circumstances, the decision maker's expectation that these records, if released, could prejudice the effectiveness of the investigation or the audit is reasonable. The purpose of this exemption is to prevent premature disclosure of information in records covered by the scope of the request which it is reasonable to expect will jeopardise the outcome or process of the investigation or audit in question. Some of the records reveal options or alternative strategies that could reasonably be expected to assist the applicant in anticipating Revenue's approach to matters. I find that section 21(1)(a) was correctly applied to the 37 records identified.
However, even where I find section 21(1)(a) to apply, I am required under section 21(2) to consider whether any public interest exists in release which outweighs the need to refuse the records. While persons who are subject to tax investigation have a clear private interest in the release of records which may hold information on the detailed reasons and processes pertaining to those investigations, the public interest in the release of such records is significantly less clear. In my view, there is no public interest in the release of these records which outweighs the public interest that public bodies, particularly a body such as Revenue whose function impacts directly on matters involving public money, are able to carry out their statutory functions in the most efficient and effective way possible, without prejudice to the lawful methods employed. This is particularly true in the case of tax audits and investigations, which have the specific and direct purpose of protecting public finances.
Accordingly, I find that the records in question are exempt from release under section 21(1)(a) of the FOI Act.
Section 22(1)(a)
Revenue claimed this exemption applied to 112 records, as listed in the appendix.
Section 22(1)(a) is a mandatory exemption which requires the refusal of a record that "would be exempt from production in proceedings in a court on the ground of legal professional privilege". It does not require the consideration of the public interest.
Legal professional privilege enables a client to maintain the confidentiality of two types of communication; (a) communications between a client and a professional legal adviser for the purpose of obtaining and/or giving legal advice, and (b) communications between a client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation ("litigation privilege").
The records in question consist of confidential communications between the Revenue and its own legal advisers and concern either the giving or receiving of legal advice. While it could be argued that some of these records involve forwarding of documents and arrangements for meetings etc., this Office has found that legal professional privilege also attaches to records where they are part of a continuum of correspondence arising from an original request for advice or preparation for litigation (Case Number 020281 - Mr. X and the Department of Education and Science on www.oic.ie).
I find therefore the 112 records at issue are exempt from release under section 22(1)(a) of the FOI Act.
Section 26(1)(b)
Revenue claimed this exemption applied to 88 records in full or in part, as listed in the appendix
Section 26(1)(b) is a mandatory exemption that applies where
" disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.".
Under section 26(2), however, the confidentiality exemption does not apply to a record prepared by a staff member of a public body or a person who is providing a service for a public body under a contract for services "in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".
The Revenue stated that the records relate to 'taxpaying entities' separate from the applicant and argue that release of the records would breach a duty of confidence to such persons provided for by an enactment i.e. the Taxes Consolidation Act 1997 which prohibits release of confidential taxpayer information. I accept the Revenue's position that the records in question constitute "taxpayer information " as defined in Section 851A of that Act.
Section 26(1)(b) is not subject to the general public interest balancing test under section 26(3). Moreover, having regard to the Supreme Court case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"], I do not consider that it is open to this Office to make a finding in this case that public interest grounds exist which would justify a breach of the duty of confidence. Indeed, neither the applicant nor his tax agent has submitted that any public interest arguments in relation to the records withheld under section 26(1)(b).
Accordingly, I find that the Revenue was justified in withholding the 88 records at issue under section 26(1)(b) of the FOI Act.
Other exemptions
As I have already found all of the records withheld by the Revenue to be appropriately exempted under one of the provisions examined above, I do not consider it necessary to examine the records in the context of any of the other exemptions applied by the Revenue. In particular, some records have been withheld under section 28(1) of the FOI Act which prohibits the release of personal information. As will be clear from my finding above that the records in question containing information about persons other than the applicant are exempt under section 26(1)(b), I do not consider it necessary to examine the application by the Revenue of section 28 to those same records.
Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby affirm the Revenue's decision in relation to the withheld records.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator
Section 21(1)(a):
Section 22(1)(a):
Section 26(1)(b):