Decision
Ms F and the Office of the Revenue Commissioners (the Revenue)
From Office of the Information Commissioner (OIC)
Case number: 120274
Published on
From Office of the Information Commissioner (OIC)
Case number: 120274
Published on
Whether the Revenue was justified in refusing access, under section 10(1)(c) of the FOI Act, to records of "[r]ulings, judgments or decisions given by the Appeal Commissioners ..." in 361 cases listed in a document released to the applicant by the Revenue as part of its decision on her request of 2 February 2012
6 February 2014
The applicant made an FOI request on 2 February 2012 for records of (i) "[r]ulings, judgments or decisions given by the Appeal Commissioners from 21 April 1998 to date", and (ii) "[a]ny index, schedule, list, summary, or similar record that refers to the above mentioned rulings, judgments or decisions of the Appeal Commissioners held or produced by the Revenue Commissioners." The Revenue's decision of 29 February 2012 explained why it was refusing those records sought at (i) under 10(1)(c) of the FOI Act. In relation to part (ii), it released an "extract from a database held in the Revenue Solicitor's Office [the RSO] which records cases that had been referred to the RSO for that division's involvement", subject to the deletion of any information that might identify particular taxpayers.
On 27 March 2012, the applicant sought an internal review of the Revenue's decision. She argued that the Revenue had not assisted, or offered to assist, her to amend her request (as required by section 10(2) of the FOI Act) so that it no longer fell within section 10(1)(c) thereof. She also said she was "happy to restrict [the] application" to the rulings, etc issued in the 361 cases listed in the above-mentioned extract.
The Revenue's internal review decision issued on 17 April 2012. It noted the "decision maker's belief that a substantial effort of consultation had already occurred" in relation to this request, on foot of contacts with the applicant arising from a similar request that she had submitted in October 2011 and withdrawn the following month, but "decided for administrative correctness to annul the ... decision of 29 February 2012". Nonetheless, it ultimately again relied on section 10(1)(c) of the FOI Act in refusing the refined request. In so doing, the Revenue cited the applicant's lack of response to a "recent conversation" in which the internal reviewer outlined the difficulties that would arise in dealing with the modified request.
On 16 October 2012, the applicant sought a review by this Office of the Revenue's refusal of its refined request under section 10(1)(c). Furthermore, she argued that the internal reviewer's consultation took place "only a day or so" before it issued its internal review decision, which she did not consider to be a meaningful period for consultation.
In carrying out my review, I have had regard to correspondence between the Revenue and the applicant, including those as set out above; to details of various contacts between this Office and the Revenue; and to details of contacts between this Office and the applicant, particularly the "preliminary views" letter sent to her by Ms Anne Lyons, Investigator, dated 24 April 2013. (That letter sought a reply by 15 May 2013. Although no reply was received by that date, it did not prove possible for this case to progress until the appointment of the new Commissioner (in December 2013). In early November 2013, however, further to contacts made by the applicant, it transpired that she had not received the preliminary views letter. While the applicant sought further time to respond to the re-issued letter, she informed the Office on 29 January 2014 that she would not be responding but required a formal decision on the matter nonetheless.) I have also had regard to the relevant provisions of the FOI Act.
The scope of this review is confined to assessing whether the Revenue's refusal of the applicant's refined request is in accordance with the provisions of the FOI Acts.
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.
A request may be refused under section 10(1)(c) of the FOI Act if, in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the body. However, section 10(2) provides that a head shall not refuse a request under section 10(1)(c) unless he or she has assisted, or offered to assist, the requester concerned to amend the request that it no longer falls within the parameters of that provision of the FOI Act.
As set out in the preliminary views letter, it seems that the only records held by the Revenue that would be of relevance to the request are what are known as "AH1" forms. I understand that these forms contain, amongst other details, a very brief summary of the outcome of appeals, and are generally retained on the taxpayers' files. However, it is the Revenue's position that it is not possible to conduct electronic searches for the forms and that manual searches of the 361 files concerned must be conducted (which are apparently held in central storage, or in some cases, in the individual taxpayer's district or region). I accept that this appears to be the only way in which the forms could be found.
Firstly, the Revenue says that it retrieved files concerning six of the 361 cases to see how easy it was to locate the relevant AH1s. Although it appears that four cases were not comprised of particularly excessive volumes of records, two were found to be comprised of records held in a total of four, and eight, boxes respectively. The Revenue says that this is not an unusual volume of records "for cases that have cycled up through the higher courts". It also notes that the majority of the 361 cases would have had some interaction with a Court.
The Revenue also says that, having examined the records pertaining to the sampled cases, it turned out that there was no particular location in a file in which the AH1s were stored. It follows that all records held regarding each of the remaining 355 cases may need to be manually searched to find the relevant AH1s. However, it is not possible to be categoric as to the number of records that may need to be searched, and the time that would be spent accordingly, without actually obtaining the files pertaining to each of the remaining cases from whatever location in which they are held within the Revenue. Accordingly, I consider it reasonable to rely on estimates.
Noting the Revenue's contention that the majority of the 361 cases would have had some Court involvement, I accept that it is possible that most would comprise of multiple boxes of records. However, I have decided to adopt a conservative estimate that one third of the remaining cases (approx. 120), may contain more than one box of files. As for how long it might take to locate the relevant AH1s, I can only presume that the AH1s in four of the six cases sampled by the Revenue (i.e. those cases that did not contain numerous records) were found reasonably speedily. However, it seems that it took over an hour to locate the AH1 for the case containing four boxes of records, and two hours for the case containing eight boxes. In the latter, I understand that the form turned out to be in the second box examined and so it is reasonable to argue that that search could have taken much longer than two hours. However, I will nonetheless adopt a conservative estimate that it would take, on average, an hour to locate the AH1 in each of 120 cases I estimate to contain more than one box of files.
Using such estimates, it would take three weeks for one searcher (working full time, seven hours a day) to locate the 120 relevant AH1s. Further time would also have to be spent searching for AH1s on the remaining cases. Thus, it is reasonable to estimate that at least four weeks of full time staff resources would have to be diverted to the task of locating the 361 AH1s of relevance to the refined request. Such a diversion could only be at the expense of other work that such staff normally carry out, which I accept was reasonable for the Revenue to consider to be a substantial and unreasonable interference with, or disruption of, its work. In such circumstances, I accept that the Revenue was in accordance with the FOI Act in refusing the refined request under section 10(1)(c) thereof. I find accordingly.
The Revenue told this Office its the internal reviewer contacted the applicant two days before the deadline for reply to her internal review application. However, as set out in the preliminary views letter, the Revenue had already made the applicant aware of the difficulties that would be encountered in responding to her request, in: (i) discussions arising from her 2011 FOI request for the same type of records, and (ii) the Revenue's decision on the request dated 2 February 2012. In addition, the applicant made her request on behalf of the Law Society of Ireland, an organisation that would be familiar with the law in general. I consider that she could reasonably be expected to gain a fairly speedy understanding of the issues discussed with her by the internal reviewer.
In such circumstances, I accept that it was reasonable for the Revenue to have expected the applicant to respond to the internal reviewer's contact within in a short space of time and that she was afforded reasonable assistance to modify her request such that it no longer fell within section 10(1)(c) of the FOI Act. Accordingly, I accept, and find accordingly, that section 10(2) has been complied with by the Revenue. For clarification, I also consider it reasonable for the initial decision to have taken account of the contacts made with the applicant further to her 2011 request, given the similarity of the two requests.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Revenue's refusal of the records specified by the applicant on 27 March 2012.
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.
Sean Garvey
Senior Investigator