Decision
Mr H and Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: 130026
Published on
From Office of the Information Commissioner (OIC)
Case number: 130026
Published on
Whether the Revenue has justified its decision to refuse to release certain records to the applicant, relating to an investigation into his tax affairs, in under section 23(1)(a)(viii), section 26(1)(b) and/or section 28(1) of the FOI Act.
13 August 2014
On 8 May 2012, the applicant's tax consultant made an FOI request to the Revenue, for his tax file in relation to an investigation into his tax affairs which the Revenue was undertaking at that time.
The Revenue replied on 31 May 2012, and refused the request on the grounds that all of the records were being withheld on the basis of sections 23(1)(i), 23(1)(a)(ii) and 21(1)(a) of FOI Act. Sections 23(1)(a)(i) and 23(1)(a)(ii) refer inter alia to records exempted from release on the grounds that their release might prejudice or impair the investigation or prevention of offences, and the enforcement of, or compliance with, any law. Section 21(1)(a) refers inter alia to records exempted from release on the grounds that their release could prejudice the effectiveness of investigations or procedures employed for their conduct. The Revenue also issued a basic schedule of the records involved, giving a generic description of each category of the records.
The applicant's tax consultant sought an internal review of this decision on 15 June 2012, and, in its response dated 9 July 2012, the Revenue affirmed its decision. On 3 January 2013, the applicant's tax consultant sought a review by the Information Commissioner of the Revenue's decision. The FOI Act provides, in section 47, for the payment of an application fee for reviews to be undertaken by this Office, unless the application is confined to the applicant's own personal information. In this case, as no application fee was paid, either to the Revenue or to this Office, the jurisdiction of this Office is confined to examining records which contain the personal information of the applicant.
Personal information is defined in section 2 of the FOI Act as "...information about an identifiable individual that— (a) would, in the ordinary course of events, 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... ”.
Following communications between Mr. Richie Philpott, Investigator, of this Office, and Revenue staff, the Revenue conducted a further review of the case, and agreed to the release of some of the records sought. In relation to some of the withheld records, the Revenue argued that section 26(1)(b) of the FOI Act applied to protect information whose disclosure would constitute a breach of a duty of confidence. The Revenue's revised position also invoked Section 46 of the FOI Act, which pertains to records which fall outside of the scope of the FOI Act on the grounds that they are available to the general public on payment of a fee, or free of charge.
In carrying out my review, I have had regard to correspondence between the Revenue and the applicant's tax consultant as set out above; to details of various contacts between this Office and the Revenue; to details of various contacts between this Office and the applicant's Tax consultant, and, in particular, the 'preliminary views letter' sent to him, dated 24 June 2014, by the Investigator, to which no reply has been received. I have therefore decided to conclude the review by way of a formal binding decision. I have also had regard to the provisions of the FOI Act.
The records to which the Revenue applied section 46 of the FOI Act in the course of the review are records of the Companies Registration Office (CRO), and, as these records are publicly available, I find that they are indeed outside the scope of the FOI Act in accordance with the provisions of section 46 of the Act. However, records which were based on CRO information, but which the Revenue accessed through it's own internal systems, continued to be treated by the Revenue as its own records held by it. Thus, it is considered that such records are within the scope of the FOI request.
Accordingly, access to the records or parts of records which remain within the scope of the FOI request was refused under sections 23(1)(a)(viii), section 26(1)(b) and/or section 28(1) of the FOI Act. I will deal with these exemptions in detail below.
Section 23(1)(a)(viii)
This section states that
"23. —(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to—
(a) prejudice or impair...(viii) the security of any system of communications, whether internal or external, of the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution."
The part of the record (15) to which the Revenue applied this exemption is a technical record which contains information the release of which, it contends, could be expected to impair the security of an internal Revenue communications system. Having examined its contents, I am satisfied that there is a reasonable expectation that its release could potentially facilitate unauthorised access to a Revenue system of communications which contains information not directly or solely related to the applicant's tax affairs. Therefore, I am satisfied that the record in question falls within the section in question. However, there is a public interest test in section 23, which states that
“(3)Subsection (1) does not apply to a record—
(a) if it—
(i) discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
(ii) contains information concerning—
(I) the performance of the functions of a public body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
(II) the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by a public body, and
(b) in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request concerned."
I am satisfied that the record in question does not contain information falling within either subsection 3(a)(i) or 3(a)(ii), so the public interest test is not applicable in this instance. Accordingly, I consider that the decision of the Revenue to withhold the record in question is justified. I find accordingly.
Section 26(1)(b)
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.
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, the applicant has not submitted that any such public interest arguments are relevant.
Accordingly, I find that the Revenue was justified in withholding the records at issue under section 26(1)(b) of the FOI Act.
Although it is not necessary to make a formal finding on this point, I would add here that I agree with the Investigator's view (communicated to the applicant's consultants) that the Revenue might usefully have considered the application of section 32(1) of the FOI Act in the context of records of this type given that disclosure of such information is prohibited by an enactment.
Section 28
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would "involve the disclosure of personal information" about an identifiable individual. The FOI Act defines personal information as “information about an identifiable individual " and goes on to list 12 types of information which are included in the definition, including, pertinently in this case "(x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual. ".
The Revenue withheld three records under section 28(1) of the FOI Act, one of which was a record also withheld under section 26(1)(b) of the Act. As I have already found it to be appropriately exempted under the latter section, I do not propose to examine it in the context of section 28. The other two records exempted by the Revenue under section 28 are not, in fact, the personal information of the applicant, and are therefore outside of the scope of this review.
I therefore consider that the Revenue has justified its decision to refuse to release any further records under section 28(1) of the FOI Act. I find accordingly.
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.
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Elizabeth Dolan
Senior Investigator