Decision
Ms X and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: OIC-111047-X4W8J6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-111047-X4W8J6
Published on
Whether Revenue was justified in refusing access to records concerning amendments made in 2010 to arrangements regarding withholding tax on royalties
4 August 2022
The applicant made an FOI request jointly to the Department of Finance (the Department) and Revenue on 30 November 2020. She referred to section 55 of the Finance Act 2010, which she said provided that withholding tax was not to apply to royalties paid by a company in the course of a trade or business to a company resident in a treaty country. She also referred to a statement of practice issued by Revenue in 2010, which she said provided for no withholding tax on patent royalties in certain circumstances. Her request sought records from 2007-2012 relating to:
Strategy Group) and/or Revenue.
Revenue’s decision of 19 January 2021 issued from two Divisions i.e. the Business Taxes Policy & Legislative Division (BTPLD) and the International Tax Division (ITD).
The BTPLD decision covered 29 records, of which it released eight in full and 12 in part, and fully withheld nine. It refused the various records and parts of records under sections 15(1)(d) (information in the public domain), 29(1) (deliberative process), 30(1)(c) (negotiations of Government or an FOI body), 31(1)(a) (legal professional privilege/LPP), 33(1)(d) (international relations) and 37(1) (personal information) of the FOI Act.
The ITD decision covered 140 records. It granted full access to 42 records and partial access to 59 records, and fully withheld 39 records. It relied on sections 29(1), 31(1)(a), 33(1)(d), 36(1)(b) (commercially sensitive information), 37(1) and 41(1)(a) (disclosure prohibited by an enactment) in relation to the withheld details.
The applicant sought an internal review on 8 February 2021. Again, Revenue’s decision of 2 March 2021 issued in two parts. BTPLD noted that certain records were duplicates of records considered by ITD. Both BTPLD and ITD released further records and/or parts of records and otherwise affirmed the application of the various exemption provisions set out earlier.
On 30 July 2021, the applicant applied to this Office for a review of Revenue’s decision, other than in relation to BTPLD record 25, which she accepts is exempt under section 31(1)(a). Her application also sought a review of the Department’s decision (see Case No OIC-111041-M7W4K2).
During the review, Revenue released some further records and parts of records. It also agreed with a view put to it by this Office’s Investigator regarding ITD’s and BTPLD’s different treatment of certain partially released records i.e. different versions of (i) a note prepared for the assistance of the Revenue Board (the note) and (ii) a Draft Corporation Tax Statement of Practice. The investigator had noted that the combined effect of ITD’s and BTPLD’s decision making on these records was such that they had been fully released other than parts 4 and 5 of the note. Revenue is now seeking to rely on section 31(1)(a) of the FOI Act in relation to part 4, and on section 33(1)(d) in relation to part 5, of the note. The Investigator also advised the applicant as to why she felt these records could be excluded from the review except for parts 4 and 5 of the different versions of the note. The applicant does not appear to object to this approach. I am proceeding accordingly.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, Revenue and the applicant and to the contents of the withheld records. I have also had regard to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether Revenue’s refusal to fully grant the applicant’s request was justified under the provisions of the FOI Act. In making my decision, it should be noted that it would not be appropriate for me to make a finding on whether or not any particular contacts constitute lobbying.
I see no reason to consider or direct the release of any details that Revenue redacted from certain records but which it or the Department has released from copies of the same records.
I note that the applicant says, in particular, that Revenue’s decisions do not identify the particular records that it is withholding under section 41(1)(a) of the FOI Act. However, I also note that Revenue’s schedules list the exemption provisions applied to each fully and partially withheld record, and that the applicant refers to this list in her submission. In any event, it is not practicable for me to identify the specific details that I am considering under section 41(1)(a), or any other exemption provision, in this case. This is because not only is there a considerable number of exemptions and records (some of which contain multiple pages) at issue but also because different exemptions apply to various parts of individual records. I confirm that I have examined all of the withheld details.
Finally, Revenue’s position is now that, on further review, record 1c ITD is not covered by the request. It does not explain why it considers this to be the case. Record 1c is described in the schedule as an attachment to record 1. It appears to me to relate to matters the subject of this request and it also relates to other records that Revenue does not dispute are covered by the request. In the circumstances, I do not accept that the record is outside scope of the request or my review and I have proceeded accordingly.
The applicant says that she made her request so as to understand the process whereby a statutory amendment was soon followed by an exercise of executive discretion to remove an Irish tax obligation. However, section 13(4) of the FOI Act requires me not to take into account any reasons that the applicant has for making her FOI request.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). Whilst Revenue has granted partial access to a number of the records, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.
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 that would cause the record to be exempt if it contained that information. I note that Revenue’s schedule describes the withheld material in general terms. I must limit the level of any further detail I can give about the records, and also parts of Revenue’s submission, because of the requirements of section 25(3).
The release of records under FOI is generally understood to have the same effect as publishing them to the world at large.
The applicant refers to two Supreme Court judgements from 2020, which she says confirm that the statutory presumption is in favour of release of information and that it is not enough for an FOI body to assert an exemption. One of these judgements is The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment). The Supreme Court said “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.”
I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, as highlighted in the eNet judgment in particular, this Office has an inquisitorial remit, which means that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
Section 15(1)(d) – information in the public domain
Section 15(1)(d) of the FOI Act provides for the refusal of a request where the information is already in the public domain. Revenue withheld one record under section 15(1)(d) and provided the applicant with a link to the relevant details, which I have examined. I am satisfied that the record is in the public domain and that section 15(1)(d) applies.
I would normally go on to deal with the application of substantive exemption provisions in sequential order. However, in the circumstances of this case, I will deal firstly with Revenue’s reliance on section 41(1)(a).
Section 41(1)(a) – disclosure prohibited by an enactment
Section 41(1)(a) of the FOI Act requires the refusal of a record the disclosure of which is prohibited by law of the European Union or any enactment, other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule.
Submissions
The ITD decisions withhold information on the basis that it is covered by section 851A of the Taxes Consolidation Act 1997 (the TCA), which provides that information disclosed to Revenue for tax purposes is protected against unauthorised disclosure by Revenue to third parties. Revenue says that section 851A of the TCA is not listed in the Third Schedule to the FOI Act and, accordingly, that it is required to apply section 41(1)(a) to the relevant information.
In particular, ITD refuses access to details relating to entities that were named by third parties in their correspondence with Revenue. ITD says that the third parties included these details mainly for the purpose of bringing vitality to their technical arguments, and that they could have named other entities to demonstrate the same points. Revenue says that, in addition, the correspondence links into its knowledge of the commercial activities of the named entities and was therefore a discussion of taxpayer information.
Section 851A(1) of the TCA defines taxpayer information as “information of any kind and in any form relating to one or more persons that is -
but does not include information that does not directly or indirectly reveal the identity of the person to whom it relates.
Section 851A(2) of the TCA provides that all taxpayer information held by Revenue or by a Revenue Officer is confidential and may only be disclosed in accordance with section 851A or as is otherwise provided for by any other statutory provision. Section 851A(8) lists various grounds under which Revenue may disclose taxpayer information.
The applicant says that, having regard to the TCA’s definition of “taxpayer information”, section 851A (and in turn section 41(1)(a) of the FOI Act) does not apply to information given by companies or professional services firms to Revenue to advocate for changes to taxation laws. She says that such information is not given for the purposes of the Taxes Acts. She acknowledges that it is difficult to distinguish such information from information coming within category (c), as set out above. However, she notes Revenue’s redaction of names of entities on the basis that these were named by others for illustrative purposes. She says that this is not taxpayer information as defined because it is not information obtained by Revenue for the purposes of tax legislation nor is it prepared by Revenue from information so obtained. On the other hand, she accepts that Revenue’s discussion of this correspondence, where based on information obtained by Revenue, could constitute taxpayer information and benefit from section 41(1)(a) of the FOI Act.
Revenue was invited to comment on the applicant’s arguments in its submission. Its position is that company names and other detailed and sensitive information about those entities were provided to it for tax purposes and comprise taxpayer information. I should say at this point that I consider the relevant details to include information, described in the ITD internal review decision for the purposes of section 36(1)(b), as concerning companies’ business processes, activities and structures.
Revenue says that the applicant’s arguments would suggest that confidentiality applies to only tax returns and information that a taxpayer is legally compelled to give. Revenue says that it engages with taxpayers cooperatively and under an understanding of confidentiality in situations where the taxpayer is not compelled under the Acts to engage. It says that taxpayers and their representatives also engage with Revenue where issues of interpretation arise in relation to the Taxes Acts, particularly where solutions are required, and which might result in legislative amendments or clarification of the law by Revenue in its publicly accessible manuals. It says that to suggest such helpful non-compulsory engagements are not for the purposes of the Taxes Acts would be to strip them of the confidentiality that all involved assume them to have, which would be detrimental to its operational capability. It says that an amendment of the Taxes Acts is made for the purposes of the Acts, as is the publication of a Statement of Practice. It says that a person who contributes to the process of developing new law or to the better understanding of existing law is doing so for the purposes of the Acts.
Separate to this, Revenue notes the applicant’s acknowledgment that sections 851A(1)(a) and (c) may apply. It says that these provisions apply to information that matches information provided to Revenue under compulsion of the Taxes Acts i.e. where information has undoubtedly been provided in confidence, a submission to the Revenue supported by that confidential information should not result in it losing its confidential status.
In addition, the applicant responds to material issues relevant to the decisions of Revenue and the Department, which were notified to her by this Office’s Investigator. The applicant refers to a letter that the Department released to her in part, which was originally sent to Revenue by a professional services firm, and which Revenue subsequently copied to the Department. She refers to the Department’s release from the letter of the client entity’s name and also a comment that the entity was agreeable to the inclusion of its name in the professional services firm’s correspondence. I note that the Department has also released other information from the record, including some details in relation to the client entity. The applicant says that there is no claim in the letter that the correspondence concerned was provided to Revenue confidentially, and argues that correspondence from a party in advance of it becoming a taxpayer is not entitled to protection under section 41(1)(a).
I accept that taxpayer information relating to any party, including information that directly or indirectly reveals the identity of the party to whom it relates, is covered by the requirements of section 851A of the TCA. Schedule 3 to the FOI Act excludes certain enactments from the application of section 41 but does not list section 851A of the TCA as one of the excluded enactments/provisions. In turn, and again in general, I accept that section 41(1)(a) of the FOI Act applies to taxpayer information.
The applicant appears to accept that section 851A of the TCA requires the confidential treatment of information that any person or entity (or agent thereof) is legally required to provide to Revenue e.g. tax returns. For avoidance of doubt, I am satisfied that section 851A applies to such information.
However, I also accept that confidentiality requirements apply to information voluntarily provided to Revenue by parties who are seeking amendments to, or clarifications of, tax laws and who refer to their own (or their client’s) business and/or tax affairs in this context. I accept Revenue’s position as to why interactions with individuals/companies/agents of the sort to which the records in this case relate, and information provided by such parties during such interactions, are for the purpose of the Taxes Acts.
Furthermore, I note that such details may mirror, reflect or discuss information that is legally required to be provided to Revenue i.e. confidential taxpayer information. I also accept that the confidentiality requirements of the TCA apply to information that a person or entity may provide to Revenue in advance of becoming a taxpayer.
As noted earlier, section 851A(8) of the TCA lists various grounds under which Revenue may disclose taxpayer information. Further to section 851A(8)(g) in particular, Revenue may disclose taxpayer information to the Department solely for the purposes of the formulation or evaluation of fiscal policy. I note that the provision does not distinguish between information as contained in tax returns, other information that a taxpayer is required to provide, information that a person or entity may provide to Revenue in advance of becoming a taxpayer, or information that is voluntarily provided for such matters as seeking amendments to or clarifications of tax laws.
Having regard to the above, I am of the view that confidentiality requirements attach to the names of the relevant taxpayers and other information that would identify them, as well as details about company structures and other company information discussed in the records. It follows that such disclosure is prohibited by section 851A of the TCA. I find that section 41(1)(a) applies to the relevant details. My finding is not changed by the Department’s release of certain information from the letter referred to above.
Section 31(1)(a) – legal professional privilege
Section 31(1)(a) of the FOI Act must be applied to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Disclosure of a record to a third party generally amounts to a waiver of privilege except where there is "limited disclosure for a particular purpose, or to parties with a common interest", as per the Supreme Court judgment of 4 March 2009 in the case of Redfern Limited v O'Mahony [2009] IESC 18. However, the concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. I am of the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice.
Revenue makes no arguments that litigation privilege applies, nor is this indicated by the records or the circumstances of this case. I do not intend to consider whether this limb of LPP applies and so there is no need to describe the Commissioner’s understanding thereof.
Submissions
Revenue’s decisions apply section 31(1)(a) to various information but only explain its application to one record. The applicant accepts the refusal of that record, which Revenue identified as an opinion of Counsel. However, the applicant does not accept that the other records are similarly exempt.
The applicant says that LPP applies only to confidential legal advice given to a client by a lawyer and not to documentation prepared in the ordinary course of a transaction or to the identity of the parties involved. She says that Revenue accepts this, as evidenced by its manual regarding the disclosure to it of taxpayer information. She says LPP can be waived by the client (Revenue). She also says that LPP does not apply to legal assistance, such as the drafting of documents in order to give effect to the intention of the client in an enforceable manner or, in this case any legal assistance given to Revenue relating to the amendment of the extra-statutory exemption before its publication in July 2010. She says that Revenue describes the relevant material as email correspondence and attachments but does not specify the parties involved or whether the attachments were created for the purposes of obtaining legal advice. She says that LPP does not cover internal deliberations describing or discussing a proposed course of action.
Revenue’s submissions do not engage with the applicant’s arguments other than to maintain that the relevant documents are legally privileged.
Further to the Investigator’s notification of material issues, the applicant also argues that the burden of proof in relation to LPP rests with the person asserting privilege. She reiterates that that the concept of legal advice has been narrowly interpreted by the Courts and refers to the comments of Finlay CJ in Smurfit Paribas ([1990] 1 I.R. 469 regarding the “many tasks carried out by a lawyer for his client and properly within the legal sphere, other than the giving of advice, which could not be said to contain any real relationship with the area of potential litigation. For such communications there does not appear to me to be any sufficient public interest or feature of the common good to be secured or protected which could justify an exemption from disclosure.” She says that this is noted in the Information Commissioner’s guidance note on section 31(1)(a) and also by the Revenue in its own guidance. She says that discussion of legal issues does not appear to her to be within the Supreme Court’s identification of LPP having a relationship with litigation and also comments on the public interest in release of the relevant records.
Further to the e-Net judgment, the disappointing lack of detailed arguments by Revenue as to why the relevant records and parts of records attract privilege does not, of itself, enable me to direct their release without an analysis of their contents.
I am satisfied that the relevant records are exempt under section 31(1)(a). My explanation of my findings is limited by the requirements of section 25(3). However, I am satisfied that some emails comprise confidential communications between Revenue and its professional legal adviser, and between Revenue’s professional legal advisor and Counsel, for the purpose of seeking and obtaining legal advice, and attract advice privilege. I am also satisfied that the attachments attract advice privilege, in that I accept that they were created for the purpose of seeking or giving legal advice. Although the applicant argues otherwise, I accept that records summarising and discussing the legal advice sought and received attract advice privilege. I am satisfied also that advice privilege applies to those emails that form part of a continuum of correspondence resulting from an original request for advice.
Having regard to the circumstances in which the various communications took place, including the complexity of the subject matter on which advice was sought, I do not consider this to be a case involving the provision of legal assistance. Revenue has not waived privilege over the records. I find that section 31(1)(a) (which, as noted already, does not require the consideration of the public interest) applies to the relevant records.
Section 33(1)(d) – international relations
Section 33(1)(d) provides that a head may refuse to grant an FOI request in relation to a record if, in the opinion of the head, access to it could reasonably be expected to affect adversely the international relations of the State. This provision does not require consideration of the public interest.
The Commissioner does not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable, in the sense that there are adequate grounds for them. While an FOI body may have particular expertise in an area, the Commissioner has made it clear that, unless it is readily apparent how or why a harm could occur, he expects an FOI body making the claim to provide a specific and coherent explanation in support of its position.
Relevant factors include whether information is in the public domain or is otherwise available, the circumstances in which the record was compiled and developments since the date it was created. Where relevant, this Office may also have regard to the expectations of the international community with regard to the information at issue, the sensitivity or confidentiality of the records and whether release of the records could result in a loss of trust or confidence in Ireland. This is not an exhaustive list and I stress that each case is assessed on its own merits.
Submissions
Revenue has withheld various information under section 33(1)(d). Its decisions say that the details relate to tax on royalties between Ireland and other states, and to the consideration of how such international tax issues impact on Ireland’s strategic interests. It says that developments in international taxation are derived from a delicate balance of jurisdictions working towards the common good, whilst also taking due account of strategic economic and societal interests. It says that a position taken by any one jurisdiction in international taxation, even historically, and the policy formulation behind that position would be of interest to other jurisdictions. It says that while insights are given to other jurisdictions, this is done diplomatically rather than by a media release of views held by officials.
It says that the records refer to international tax matters of common interest to other jurisdictions, some of which are named. It says that if such details became public, Ireland’s relations with those other jurisdictions would be adversely affected. It says that negotiations on future international agreements and on international cooperative initiatives could be adversely affected, especially if international partners developed concerns over Ireland’s ability to deal with such matters confidentially.
The applicant says that her request is not a matter of a media release but of an academic study. She acknowledges the provisions of section 13(4) and says that her comment is made solely in response to Revenue’s reference to media release of material.
The applicant also says that the matter is primarily a question of domestic Irish law, not international relations. She refers to Revenue’s comments about future international negotiations and about other states’ expectations that Ireland will treat information provided to it confidentially. She acknowledges that there are important ongoing negotiations in relation to international corporate tax rules, led by the OECD and the EU, and that Ireland is recognised as having consistently and meaningfully engaged with other jurisdictions in relation to cross border taxation. She says, however, that the change in domestic law the subject of her request preceded these major developments and did not depend on any information provided in confidence to Ireland by other states. She says that the change was not secret and, for instance, was publicised by the IDA and professional service firms. She also notes that the IDA was copied on correspondence from a professional services firm advocating for a change in the law. She says that the change in legislation was used by the State via the IDA to market Ireland as a destination for foreign direct investment and that in the overall circumstances, there is no basis for a reasonable expectation that release of the relevant records would damage the State’s international relations.
The Revenue was invited to comment on the applicant’s arguments in its submission. It notes that her arguments were made without sight of the withheld information, and invites the Commissioner to take a broader view of its significance. It disputes that the legislative changes are historical domestic events which did not depend on information provided in confidence by other states. It says that this is, in any event, of little significance. It suggests that some of the details at issue could be deemed outside the scope of the request given the applicant’s position that these relate to a matter of a solely domestic nature, but does not pursue this argument and continues to rely on section 33(1)(d).
Revenue notes the applicant’s position that her motivation for the request is an academic study. However, it says that it must nonetheless take account of the likely impact that release of the withheld details would have on a potentially wider international audience. It says that Ireland’s relationships with other international jurisdictions operate under the protection of mutuality of trust, any harm to which may be irreparable. It explains how release of the withheld information (details of which I cannot include here due to the requirements of section 25(3)) could cause harm to the trust that exists between Ireland and certain other states, and in turn impact on the diplomatic relationships between Ireland and such countries. It says that this, in turn, could affect Ireland’s international reputation and impact on the trust and confidence maintained between Ireland and other countries generally.
Further to the Investigator’s notification of material issues, the applicant comments on the passage of time since the records were created, the fast-moving world of international taxation and how Ireland has made various changes to its own tax laws since 2010. She says that in such circumstances, disclosure of the records cannot prejudice international relations.
First, I do not agree with Revenue’s suggestion that certain of the applicant’s views render the relevant records outside the scope of her request. I also note the applicant’s position that her intended academic study does not equate to a media release, and her acknowledgement of the provisions of section 13(4). Regardless, the disclosure of information under FOI is accepted to be akin to its publication to the world at large and Revenue’s reference to the media release of the withheld details must be read in this context.
I do not consider the matter to be a solely domestic issue. I am mindful of the requirements of section 25(3) of the FOI Act, but I accept that the information at issue concerns how international tax issues impact on Ireland’s strategic interests. Although the relevant changes have been publicised, I have no reason to believe that the level of detail of the information at issue is in the public domain. I also accept Revenue’s position that it would normally inform other countries of its views on a particular matter in a measured manner, rather than by the disclosure of raw details of its analysis to the world at large. I accept what Revenue says regarding how diplomatic relations rely on trust between states and that a country’s international reputation is significant in this regard. I accept that any country’s breach of such trust, even in relation to a specific matter, could cause difficulties in its wider relationship with the country or countries directly affected and other states generally. I also accept that matters relating to international taxation remain contentious and that such details can retain their sensitivity notwithstanding passage of time.
I accept that the details at issue remain sensitive to this day and that their disclosure to the world at large, in the overall circumstances, could cause difficulties between Ireland and other states in relation to international taxation and in turn other matters. Therefore, I am satisfied that granting access to the records could reasonably be expected to affect adversely the international relations of the State. I find that the relevant information is exempt under section 33(1)(d) of the FOI Act.
Section 37 - personal Information
Section 37(1)
Revenue is relying on section 37(1) in relation to names, addresses, contact information and other personal information of individuals (the identifying information), some of whom are personnel of companies/professional services firms that sought tax changes or clarity regarding taxes legislation.
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
In making my findings on section 37, it is not relevant whether the applicant may be aware of some of the identifying information, whether further to extracts already released from the records or by other means.
The applicant takes particular issue with the redaction of names of individuals who are personnel of either companies or professional services firms and who wrote in their professional capacities to Revenue. She says that while the definition of personal information is quite extensive, such details do not meet the terms thereof. She says also that they do not fall within the categories of information that must be considered as personal information.
The applicant makes various arguments as to why, in particular, the second part of the definition is not met in this case. However, I see no reason to set out or deal with those arguments because, in my view, information showing that an individual corresponded in a professional capacity with an FOI body about a particular matter is information relating to the individual’s employment or employment history. I also note that section 37 of the FOI Act does not distinguish between information relating to an individual in either a private or a professional capacity. I find that the relevant identifying information comprises personal information relating to the parties involved.
I am also satisfied that the remaining details withheld under section 37 comprise personal information for the purposes of the FOI Act. Insofar as the details concern public servants, I am satisfied that they do not fall under the exclusions to what may be considered to be personal information (section 2 of the FOI Act refers).
I find that all of the withheld identifying information is exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I am satisfied that none of the circumstances arise in this case.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in 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) (“the Rotunda case”). I also note that a public interest should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in the e-Net judgment. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. As noted earlier, it is also relevant that the Act places no constraints on the uses to which the information contained in those records may be put.
Revenue says that release of the identifying information does not tip the balance sufficiently towards the public interest to override the right to privacy of these individuals.
The applicant is presumably of the view that there is a public interest in disclosing that an individual lobbied or engaged with an FOI body to either seek changes to or clarification of the law. As noted earlier, it is not part of my role to determine whether the contacts made in this case amounted to lobbying. Rather, the question is whether further details regarding the contacts should be disclosed under the FOI Act in the public interest.
I do not consider it appropriate to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the individuals concerned acted on behalf of companies that directly or indirectly contacted an FOI body in relation to tax laws. Neither do I believe it is appropriate for me to make such a direction because the applicant may take issue with the changes to the tax laws or because of any implications for the Exchequer. I should also say that I have no remit to consider, or make findings on, the adequacy of any FOI body’s actions in this regard.
I have already found that details identifying any company that sought clarification or amendment of taxation laws (whether by engaging directly with Revenue or through intermediaries such as professional services firms) are exempt under the FOI Act. However, I note that the released material reveals much of the clarifications/amendments sought by such third parties as well as details relating to Revenue’s consideration of the matters raised. Accordingly, the material released to date seems to me to provide a reasonable amount of insight into the changes made in 2010 to the tax laws. It seems to me that disclosure of identifying information, including that concerning personnel of companies or professional services firms who contacted Revenue, would give minimal further insight into the matters, if indeed any insight at all.
In any event, regardless of how much insight into such matters may result from release of the identifying information, this does not, of itself, mean that there should be no protection of privacy rights of individuals. Granting access to the identifying information will breach the rights to privacy of identifiable individuals. In the particular case of personnel of companies or professional services firms, such release discloses information relating to their work-related performance. It may be argued that disclosure will result in only minimal breaches of privacy. However, having regard to the nature of the information at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom it relates. I find, therefore, that section 37(5)(a) does not apply.
Having regard to my findings above, there is no need for me to consider the other exemptions relied on in this case.
I should also add that while some small excerpts of the withheld records or parts of records may not of themselves meet the requirements of the particular exemptions that I have found to apply, I do not consider it in keeping with the Commissioner’s approach to section 18 to direct the release of these details.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue’s decision to withhold various records and parts of records under sections under sections 31(1)(a), 33(1)(d), 37(1) and 41(1)(a) of the FOI Act.
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.
Deirdre McGoldrick, Senior Investigator