Decision
Company Z and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: OIC-139848-S6G4Q5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-139848-S6G4Q5
Published on
Whether Revenue was justified in refusing to release, under sections 29, 30(1)(a), 31(1)(a), 32(1)(a) and 41(1)(a) of the FOI Act, certain records relating to the applicant’s corporation tax
29 May 2024
The applicant in this case is a corporate group. It made its FOI request to Revenue, and its application for review by this Office, through its accountants. References to the applicant in this decision may be taken as referring to the applicant or its accountants, as appropriate.
On 7 March 2023, the applicant sought access to all records in respect of six named companies within its group from 1 December 2004 to date. It also sought internal Revenue records from January 2007 to date concerning policies and procedures relating to the issuing of oral determinations. On 14 March 2023, Revenue wrote to the applicant and advised that the request was likely to be refused under section 15(1)(c) as it believed that searching for and retrieving the records requested would place a significant and unreasonable administrative burden on the relevant Division. It made some suggestions as to how the scope of the request could be refined. On 16 March 2023, the applicant wrote to Revenue confirming a revised version of the request. It sought records in respect of corporation tax for the accounting period ending 4 January 2003 for the six named companies, relating to amended returns on various specified systems and in the files of specified individuals, excluding any correspondence between Revenue and the applicant. It also sought records containing any Revenue policy or procedure relating to the making of oral determinations and/or the notification of a right of appeal when a determination is made, as they applied in 2007.
On 13 April 2023, Revenue informed the applicant that, pursuant to section 14 of the FOI Act, it was extending the period of consideration of the request by up to four weeks because the request related to such a number of records that compliance with the standard four-week time period was not reasonably possible. Revenue’s Business Taxes and Policy and Legislative Division (BTPLD), International Tax Division (ITD), and Large Corporates Division (LCD) then issued three separate decisions on the request, on 25 April, 26 April and 9 May 2023 respectively. The divisions identified 38, 8 and 129 relevant records, respectively. They released some of the records, in full or in part, but refused access to the majority of them under, variously, sections 29, 30(1)(a), 31(1)(a), 32(1)(a)(i), 37, 41(1)(a). Only LCD addressed the second part of the request which was for the policy records on the making of oral determinations; it refused this under section 15(1)(a) on the basis that no such records were located. On 27 April 2023, the applicant sought an internal review of the BTPLD and ITD decisions; on 12 May 2023, it sought an internal review of the LCD decision. Revenue issued decisions on the internal review in respect of each of the three divisions on 6 June 2023. BTPLD varied its decision on 21 of the records, releasing 13 of them in full, and 8 in part. ITD affirmed its original decision. LCD varied its decision, amending the basis on which some of the records were refused, and finding that some of them actually fell outside the scope of the request. It did not, however, release any additional records.
On 23 June 2023, the applicant applied to this Office for a review of Revenue’s decision. In the course of the review, the Investigator raised concerns with the applicant about the scale of the review in light of the volume of records at issue, which came to around 1,700 pages, and asked whether consideration would be given to narrowing and focusing the scope of the review to a more limited range of records. There was then substantial communication between the Investigator and the applicant in an effort to reduce the scope to a more manageable number of records.
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 submissions made by Revenue and by the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Following submissions from Revenue and consultation with the applicant, the applicant accepted Revenue’s position that it held no relevant records relating to Revenue policy on the making of oral determinations and/or the notification of a right of appeal when such a determination is made, as applied in 2007. In these circumstances, I will give this part of the request no further consideration.
In the course of the review, and due to the way in which Revenue processed the request with three separate decisions, schedules and sets of records, the Investigator identified significant duplication across the records, as well as inconsistent treatment of records by the divisions, with many records refused by one division of Revenue but then released in full or in part by another division. The applicant agreed that duplicate records could be removed from the scope of the review.
On an initial examination of the content of the records, the Investigator notified the applicant of her view that the vast majority of records refused under section 31(1)(a) contained confidential legal advice that would be subject to privilege and that furthermore, some of the other records which had been refused under other exemptions appeared to have been created for the dominant purpose of preparing for litigation i.e. for the appeal before the TAC, and would likely be subject to litigation privilege. While Revenue had not claimed section 31(1)(a) in respect of these records, given that it is a mandatory exemption I am satisfied that it was appropriate for the Investigator to consider it. The applicant accepted this position, and agreed that the relevant records could also be omitted from the scope of the review.
The Investigator then confirmed with the applicant that the review would be confined to the following remaining 25 records:
This review is therefore concerned solely with whether Revenue was justified in refusing to release the above records under, variously, sections 29(1)(a), 30(1)(a), 31(1)(a), 32(1)(a), and 41(1)(a).
Some of the records contain small amounts of personal information relating to Revenue staff members e.g. mobile phone numbers, and individuals’ personal arrangements relating to their employment (records 91, 100, 116). The applicant has confirmed that it is not seeking access to this information and it can be excluded from the scope of the review.
Before looking at the substantive matters, I wish to make some preliminary comments.
Firstly, this review has taken considerable time and the delay in bringing it to a conclusion is regrettable. The large number of records involved played a part in this, but the difficulty was exacerbated by the approach taken by Revenue with separate, and inconsistent, decisions, schedules and submissions, made by each of the three divisions. The FOI liaison officer acknowledged and apologised for this. While I appreciate that Revenue is a large organisation and that it is up to the FOI bodies to decide on the optimal administrative approach to managing FOI requests and reviews by this Office, I urge Revenue to reconsider how it approaches these kinds of cases. As well as the very significant administrative burden that the approach taken by Revenue placed on this Office, it must be noted that where one part of an organisation claims that a record is exempt and describes the harms it envisages from its release, and then another part of the organisation releases the same record, either in full or with some redactions, it seriously undermines the claims for exemption. This is not the first time that Revenue has taken this approach and it must be noted that other large FOI bodies with similar divisional arrangements are able to provide composite decisions and ensure consistency across their organisations.
Secondly, the applicant provided a detailed account of why it was looking for the records in question. While it provided a useful context in which to understand the records, it is important to note that section 13(4) of the Act provides that, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Thirdly, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Revenue to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified. I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. 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.
Fourthly, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions 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.
Finally, when Revenue made its initial submissions to this Office, the scope of the review had not yet been narrowed down to the final 25 records. Therefore, the submissions contain arguments that may have been intended to support Revenue’s position to refuse access to particular records that have subsequently been taken outside the scope of the review. For completeness, I have examined all arguments made by Revenue and considered whether they apply to the remaining 25 records.
Background to the records
The records in this case relate to a claim for tax relief made by the applicant that was refused by Revenue and is currently the subject of an appeal before the Tax Appeals Commission (TAC). As I understand it, the claim was originally made in 2004 and there was various correspondence and meetings between the parties up until around 2007. In 2020, the applicant renewed contact with Revenue stating that a decision had not been made on the 2004 claim. Revenue refused the claim in May 2021 and the applicant appealed the decision to the TAC. The hearing before the TAC is yet to be held.
Section 30: Functions and negotiations of FOI bodies
Revenue refused all the records within the scope of the review under section 30(1)(a). I will consider this exemption first.
Section 30(1)(a) of the Act provides for the refusal of a request if the FOI body 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. Section 30(2) provides that section 30(1) does 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 request.
Submissions from Revenue
In the same way that Revenue provided separate decisions and schedules of records from each of the three relevant divisions, the submissions also included separate points made by each of the divisions, albeit the arguments made were similar and I have summarised them below.
Revenue said that the records refused contained information regarding procedures and methods which may be used in the conduct of investigations, inquiries or audits. It said that release of these records may provide insight into the methodologies and techniques used by Revenue in carrying out these processes, the details of which would not ordinarily be known by the general public and which are required by Revenue in order for it to effectively perform its duties. It said that while the records might not appear sensitive in isolation, their release may be harmful when taken as a whole and in the context of the ongoing case [before the TAC].
Revenue also said that release of the records concerned would reveal details of the investigations and inquiries it carries out to gather material, and to verify and test information provided by taxpayers. It said that disclosure of information about the procedures and methods used by Revenue in this case, and its particular circumstances, to the "world at large" could reasonably be expected to prejudice or impair the effectiveness of inquiries or investigations. It said that this would be detrimental to the formulation of decisions being deliberated on and their outcomes. It said that as there is an appeal case pending with the TAC, the release of these records would impede any further investigations conducted by the LCD.
It said that the records involve Revenue’s internal observations and the identification of potential courses of action which may provide significant assistance to taxpayers making similar requests. It referred to a 2000 decision made by the Information Commissioner (reference: 99232) and said that the records “might rehearse detailed arguments (including legal arguments) for use in any subsequent appeal”. It acknowledged that while such matters can reasonably be expected to arise in the course of cross examination at a future appeal hearing, allowing the applicant access in advance of oral evidence to Revenue's detailed assessment of, and reaction to, the replies already given, could reasonably be expected to prejudice or impair the fairness of the proceedings at that hearing.
When asked by the Investigator to be more specific in relation to the harms it envisaged flowing from release of the records, with reference to the actual content of the records, Revenue said that in relation to BTPLD record 8 (which is contained in its entirety in BTPLD record 23), it contains the expression of views which are “premised and caveated throughout with ‘if’”, and reflects that internal consensus on the approach to be taken hadn’t been reached and pointed to potential wider ramifications. It said that it was “clear that release of this record could, at the very least, ‘reasonably be expected to’ prejudice not only tests, examinations, investigations etc. in respect of the applicant’s case but also other cases”, as well as prejudice the procedures or methods employed.
With respect to the ITD records, it said that the records contain procedures and methods which may be used in the conduct of investigations, inquiries or audits conducted by Revenue. It said that they consist of internal communications and may provide insight into the methodology and sources used by Revenue in carrying out investigations, inquiries and audits, particularly, Revenue’s interpretation of EU law, its interaction with domestic law and Revenue’s position in relation to TAC. Again, it said that such techniques are not common knowledge and records which may not appear sensitive in isolation may be harmful when taken as a whole. It said that, the release of the records concerned would reveal details of the investigations and inquiries that Revenue carries out to gather material and verify information provided by taxpayers, and that disclosure of information about the procedures and methods used by Revenue in this case could reasonably be expected to prejudice or impair the effectiveness of inquiries or audits.
In respect of the LCD records, Revenue said that there are a number of issues at hand which the TAC will rule on, one of which is the significant time lapse in the applicant revisiting a claim that was accepted by the tax agent as refused at the time. It said that the granting of access to these records can reasonably be expected to cause a particular prejudice or harm to Revenue in conducting its defence at the appeal hearing. It said that the possible loss of this case will impact Exchequer funding. It said that release of the records would put the applicant in an advantageous position at the TAC hearing and could reasonably be expected to prejudice the effectiveness of the appeal. It pointed to the importance of not unfairly disadvantaging Revenue in its responsibility to serve the community by fairly and efficiently collecting taxes and duties and said that vital interests of the community are served by effective case management and administration in the area of taxation.
Analysis
Section 30(1)(a) is what is known as a harm-based provision. It envisages two potential types of "prejudice" or harm: the decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or the procedures or methods employed for the conduct thereof. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. A claim for exemption under this provision must be made on its merits and in light of the contents of the particular records concerned and the relevant facts and circumstances of the case.
I think it is important to note that while the eNet judgment says that failure by an FOI body to justify its decisions does not lead to an inevitable or statutorily mandated outcome, and that this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, the investigators in this Office cannot be expected to be subject matter experts in all things generally, and in this case, tax experts in particular. The Investigator sought focused submissions in this case, and went back a second time, seeking further information due to the initial submissions being so general in nature. She stated that it was not apparent to her what specifically the records would disclose that would lead to the harms envisaged by Revenue in terms of undermining its decision-making processes etc. While some further information was received, this remained fairly high level. It is not uncommon for investigators to need to go back to FOI bodies with matters for clarification, but this does not mean that the Office must, or will, continue to ask a body for sufficient details and arguments until the threshold for an exemption claimed is met. If Revenue believes that the record(s) disclose matters that could cause a harm, that is not apparent from its face, it is up to Revenue, as the subject matter experts, to explain to this Office what the record discloses and how it envisages harm flowing from its release. Neither do I believe it to be the role of this Office to construct arguments to support an FOI body’s broad assertions.
I would note that in respect of many of the records, it seems that a blanket approach has been taken by Revenue without due consideration to their specific content. I am conscious of the requirements of section 25(3), but think I can reasonably say that, for example, LCD records 38, 91 and 116 relate to administrative processes seeking access to old files relating to the claim; LCD record 93 contains an article from Chartered Accountants Ireland that is available online; and LCD record 25 relates to procedural matters about the appeal to the TAC. It is not apparent to me that the release of such records could reasonably be expected to lead to the harms set out by Revenue such that they would meet the requirements of section 30(1)(a), nor has Revenue provided any rationale as to how it envisages such harms occurring.
In relation to the more substantive records which I have carefully examined, it is clear from the records that the claim for tax relief at the centre of this case was complex, and in deciding on an approach to take, extensive consultation, research, exchanging of opinions and legal advice, between the various divisions, was required. I accept that these records disclose some of the deliberations that took place during this this process of investigation and inquiry, which ultimately led to a decision being made in May 2021 to refuse the claim. That decision was then communicated to the applicant who appealed it to the TAC. In order to establish whether section 30(1)(a) applies to these records, it must be shown that disclosure of the information related to the process leading to the making of this decision could reasonably be expected to prejudice the effectiveness of Revenue carrying out such investigations and inquiries, or the procedures it uses to conduct them in respect of making a decision on the applicant’s claim, or indeed other future decisions more generally.
Revenue argued that release would provide insight into the methodologies and techniques it uses, which would not ordinarily be known to the general public. When asked to be more specific as to what methodologies and techniques it was referring to, it referred to internal communications used by Revenue in carrying out investigations, inquiries and audits, particularly, Revenue’s interpretation of EU law, its interaction with domestic law and Revenue’s position in relation to TAC. I have accepted that the records disclose details of the process that led to Revenue reaching the decision that it did, but it has not been explained, and nor is it apparent to me, how disclosing the associated communications and deliberations could prejudice this or other investigations or inquiries, or the methods used to conduct them. It seems to me that in an area of complex tax law, a taxpayer would reasonably expect that such deliberations would be required.
In respect of the argument that release of the records would put the applicant in an advantageous position at the TAC hearing and could reasonably be expected to prejudice Revenue in defending its decision, I note that all records which the Investigator deemed to be likely to be exempt under legal advice or litigation privilege (section 31(1)(a)), following an initial assessment, have been removed from the scope of the review. Revenue raised the issue of the applicant having access in advance to records relating to its preparation for the TAC hearing; I am satisfied that none of the records remaining within the scope of the review contain such information, this has all been taken outside the review. It has not been explained how the limited number of records remaining in the scope of the review could prejudice Revenue at the TAC, nor is it apparent to me from examining the records.
Related to this, I note from the submissions that one of the issues to be dealt with by the TAC is the question of a significant time lapse in a taxpayer revisiting a claim that was accepted by the tax agent as refused at the time. Revenue said that the possible loss of this case could impact Exchequer funding and may also lead to an increase in claims that have been refused a significant time ago. Firstly, I note that, in general, TAC hearings are held in public and it publishes its decisions and it is presumably required to adhere to fair procedures and natural justice, therefore I expect that issues relating to this question of timing will be examined by the TAC and reflected in its final published decision. Secondly, it seems to me that if the TAC found that Revenue was not correct in the decision it made on the applicant’s claim, and if this had a knock-on effect such that other taxpayers might make related claims, it does not seem reasonable to me to seek to rely on an exemption to prevent the release of records in order to protect the Exchequer from claims that other taxpayers are potentially legitimately entitled to.
Revenue also argued that releasing records could create uncertainty among taxpayers as to the application of the law. This Office does not generally accept that the possibility that released information will be used in some particular way, or will be misinterpreted, or will not be properly understood, is a valid reason for refusing access to the information, nor does the FOI Act provide for the withholding of information on the grounds that it is factually inaccurate. Apart from anything else, such arguments appear to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
For the above reasons, I am not satisfied that release of the records at issue could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of Revenue, or the procedures or methods employed for the conduct thereof. I find that section 30(1)(a) does not apply. Accordingly, there is no need for me to examine the public interest under section 30(2).
Section 29(1): Deliberations of FOI bodies
Revenue refused the following records under section 29(1): LCD records 38, 63, 65, 77, 83, 84, 85, 91, 93, 99, 100, 103, 110, 122 and 129; BTPLD records 23 and 25; ITD records 1 and 2
Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.
Submissions from Revenue
I have summarised the points made by the three different divisions in Revenue’s submissions in relation to section 29.
Revenue said that the records refused under section 29, related to the consideration and weighing up of matters in the context of making a decision on the claim for tax relief sought by the applicant. It said that it included the consideration and interpretation of legislation and case law, as well as taking into account policy matters, opinions and recommendations across the various divisions. It said that some of the records concerned the drafting of letters and reports, and formulating requests for advice. It said that with regard to some records, they referenced other cases as well as the applicant’s. It said that the deliberations remained in focus due to the ongoing appeal to the TAC which involved further thinking on the various recommendations, opinions and policy matters as well as the formulation of positions.
Revenue said that the disclosure of the information requested would be contrary to the public interest, by reason of the fact that the requester may become aware of details relating to issues that were under consideration and thus relate to the deliberative process being undertaken by Revenue.
Revenue said that release of the records would be contrary to the public interest as it would undermine and prejudice the integrity of its decision-making process, and could create uncertainty among taxpayers. It said that release would undermine Revenue’s position with regards to the appeal before the TAC, which would be contrary to the public interest. It said that the public interest in allowing Revenue to make informed decisions in the course of carrying out its functions would not be served by releasing the records. It said that there is a need for space and time to consider all relevant issues to arrive at an informed outcome and to not allow for this would also be contrary to the public interest. It said that the release of the withheld information would be contrary to the public interest, by reason of the fact that processes and procedures being deliberated were under consideration, prior to a full analysis being completed.
Furthermore, Revenue said that release of the records would “sets a dangerous precedent that taxpayers should have access to Revenue’s ‘thought process’ in relation, particularly, to highly complex and technical cases”. It said that it would give taxpayers an insight into Revenue’s discussions relating to the application of EU and domestic law, which may, if a precedent is set of releasing such records, curtail Revenue’s ability to have an open and frank discussion in relation to the interpretation of highly technical EU law and domestic law provisions.
Analysis
Having carefully considered the records and the submissions made by Revenue, I accept that the records contain matter relating to a deliberative process i.e. they contain opinions, advice and recommendations, considered by Revenue in the course of its decision-making process on the applicant’s claim. While, as noted in the analysis under section 30(1) above, some of the records are more administrative or procedural in nature rather than being directly connected to the deliberative process, the provision specifies matter “relating to” deliberative processes, and on that basis I accept that section 29(1)(a) applies to all of the records concerned. I must then consider whether section 29(1)(b) also applies.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest balancing test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In this case, the decision that Revenue was deliberating on has been made and communicated to the applicant, so it cannot be said that release of the records would make the applicant aware of a decision that Revenue proposed to make. In respect of the appeal to the TAC any records which might reveal the approach to be taken at the TAC have been removed from the scope of the review on the basis that they would be exempt from release under legal privilege anyway.
In terms of why release would be contrary to the public interest, Revenue’s arguments here are broadly similar to the arguments made in respect of the harms envisaged under section 30(1)(a) i.e. that disclosure of deliberations would undermine Revenue’s decision-making processes, that release would create uncertainty and confusion among taxpayers, and that it would prejudice Revenue at the TAC. Furthermore, it argued that release would create a precedent that access would be given to Revenue’s ‘thought process’ and that this would curtail its ability to have open and frank discussions on technical and complex issues.
As set out in my analysis of section 30(1)(a) above, I do not accept that the harms envisaged by Revenue could reasonably be expected to flow from release of the records at issue. For those same reasons, neither do I accept that Revenue has established that release would be contrary to the public interest, with reference to these same harms flowing from release. With respect to the argument around creating a precedent, it is important to note that FOI decisions do not create precedents. While consistency is important, each FOI request must be dealt with on its own merits and with reference to the specific contents of the records at issue.
The Commissioner has indicated previously that, in exceptional cases, an argument regarding frankness and candour of public servants engaging in deliberations might be sustainable in the context of the public interest test at section 29(1)(b). However, he made it very clear that arguments about inhibiting frankness and candour must be supported by the facts of the case and the specific harm to the public interest flowing from that inhibition must be identified. Beyond making the general point that release of the records would curtail its ability to have open and frank discussions, Revenue has not explained why release of the records at issue would lead to this outcome, and it is not apparent to me from the records themselves. Revenue stated that the records contained references to other parties as well as the applicant; apart from record 25, it is not apparent to me that other third parties are mentioned in the records at issue. The relevant part of record 25 is examined in more detail under section 41(1)(a) below.
On balance, having considered the arguments and the content of the records, I am not satisfied as to how release of the records could lead to the various harms envisaged by Revenue. Accordingly, I am not satisfied that Revenue has shown how it would be contrary to the public interest to disclose the information contained in these records. Having carefully examined the records, neither can I see how granting access would be contrary to the public interest. I find that section 29(1)(b) does not apply.
Section 32: Law enforcement and public safety
Revenue also refused LCD record 63, and BTPLD records 23 and 25 under section 32(1)(a).
Section 32 is a harm based exemption which allows a body to refuse a request if it considers that access to the record sought could reasonably be expected to give rise to any of the harms set out in subsection (1). Where an FOI body relies on section 32(1), it should identify the potential harm to the matters specified in the relevant sub-paragraph or sub-section that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. A mere assertion of an expectation of harm is not sufficient, the FOI body should show how release of the particular record could reasonably be expected to result in that harm; the contents of the record(s) at issue are important and consideration should be given to what they reveal.
Submissions from Revenue
Revenue said that the records include internal email chains regarding a pending and subsequently submitted appeal, pending litigation (including draft arguments), drafts of internal Intervention Query Reports and emails regarding the views and deliberations between ITD and BTPLD. It said that the records contain suggested courses of action relating to a pending and subsequently submitted appeal and litigation. It also said that they contain reports that were not yet final, and the views expressed therein had not been approved at that stage.
It said that in its view, these records are exempt from release under section 32(1)(a) on the basis that release would prejudice or impair, (ii) the enforcement of compliance with or administration of the law (in this instance, tax law, specifically the Taxes Consolidation Act 1997), and (iv) the fairness of civil proceedings in a court or other tribunal i.e. the TAC. Revenue said that it believed it to be reasonable to expect that release of the record(s) would impact the fairness of pending litigation at the TAC as the applicant would become aware of internal discussions / communications relating to what steps Revenue may take on submission of an appeal. It said that in turn this would also prejudice and impair Revenue’s ability to enforce the law by virtue of this litigation.
Analysis
As noted earlier, the submissions were made when the scope of the review included more records. Two of the records remaining within the scope of the review (LCD record 63, and BTPLD records 23) are email chains containing internal discussions on how to handle the claim. BTPLD record 25 is the final Intervention Query Report which was released with some redactions.
I accept that the TAC is a tribunal for the purposes of section 32(1)(a)(iv) and that Revenue is charged with administering, and enforcing compliance with, tax law in Ireland, for the purposes of section 32(1)(a)(ii). There is no dispute that the records concern Revenue’s decision-making on the applicant’s claim for tax relief, which has been subsequently appealed to the TAC. However, the fact that the records may relate to matters specified in paragraphs (i) to (x) does not, in and of itself, establish a link between their release and the harms envisaged in section 32.
It seems to me that the harms envisaged are the same or similar to the ones that I examined in detail under section 29 and 30 i.e. that releasing records that disclose internal discussions or deliberations will harm Revenue’s ability to make decisions or to defend its decisions at the TAC. I do not intend to restate my analysis of those arguments already addressed in this decision but I confirm that I have had considered them in reference to the claims for exemption under sections 32(1)(a)(ii) and (iv). As I have already noted, any records containing confidential legal advice, or that were clearly created with the dominant purpose of preparing for the TAC, have been removed from the scope of the review with the consent of the applicant on the basis that they would be exempt under section 31(1)(a). Having reviewed the content of the three records at issue, in light of the arguments made by Revenue, I simply cannot see how the release of these records could reasonably be expected to lead to the harms set out in sections 32(1)(a)(ii) or (iv). I find that Revenue has not justified its reliance on section 32(1) of the FOI Act for refusing access to these records.
Section 31: Parliamentary, court and certain other matters
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
Provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
Revenue claimed legal privilege over approximately 60 records initially and, as set out in the Scope section earlier, the applicant agreed to remove almost all of these records from the scope of the review on the basis of the Investigator’s initial view that they did in fact contain confidential communications between client and legal advisor, for the purposes of obtaining/giving legal advice. Furthermore, notwithstanding that Revenue did not claim legal privilege on them, the applicant also agreed to exclude from the review another 22 records where the Investigator’s view was that a claim for litigation privilege would be sustainable, and that given the mandatory nature of section 31(1)(a), she was obliged to consider it.
In the submissions made by Revenue, some of the arguments made under other exemptions could potentially be construed as arguments for legal privilege e.g. arguments under sections 30 and 32 that release of records could prejudice Revenue in defending its position at the TAC. Section 31(1)(a) was not claimed in respect of the records that fall within the scope of this review, apart from LCD record 94 which I examine below. However, for completeness I note that all records have been examined through the lens of legal advice privilege and litigation privilege, and I am satisfied that the other 24 records remaining within the scope of this review do not contain the types of confidential communications set out above, and are not legally privileged.
In these circumstances, there remains only one record, LCD record 94, that falls for consideration under section 31(1)(a). Having considered this record, it seems to me to contain internal Revenue communications concerning a procedural matter relating to the TAC. It is not apparent to me that it contains confidential communications between legal advisor and client for the purpose of giving/obtaining advice, or confidential communications between legal advisor and client, or indeed client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. I find, rather, that it is of an administrative nature and not privileged. I find that Revenue has not justified its refusal to release this record on the basis of section 31(1)(a).
Section 41: Enactments relating to non-disclosure of records
Revenue refused to release part of record 25 under section 41(1)(a) of the FOI Act.
Section 41(1)(a) 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. Revenue referred to section 851A of the Taxes Consolidation Act 1997 as the relevant enactment in this instance.
Generally speaking, 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 obtained by a Revenue Officer or for the purposes of the Acts, purportedly for the purposes of the Acts or prepared from information so obtained, but does not include information that does not directly or indirectly reveal the identity of the person to whom it relates. Section 851A(2) provides that all taxpayer information held by Revenue or 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 of the TCA is not listed in Schedule 3 to the FOI Act, which excludes certain enactments from the application of section 41 of the FOI Act.
Record 25 is an Interpretation Query Report. Under section 4.5 (“Has Revenue provided an interpretation on a similar issue previously? Do you agree with that interpretation?”), there are six bullet points which refer to cases dealt with by the branch previously. Each bullet point refers to a specified third party entity. Having carefully examined the record, I accept that the details concerned reveal the identity of the relevant third party tax payer entities and that they are covered by the prohibition on disclosure in section 851A of the Taxes Consolidation Act. Such third party taxpayer information may only be disclosed in accordance with section 851A of the TCA or as is otherwise provided for by any other statutory provision. Having regard to all of the foregoing, I find that section 41(1)(a) of the FOI Act applies to these details. Section 41(1)(a) does not require the consideration of the public interest.
I find that Revenue was justified in refusing access to this specified information in record 25.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Revenue’s decision on the 25 records within the scope of this review.
I find that it has justified, under section 41(1)(a), its decision to refuse access to the six bullet points under section 4.5 of record 25.
I find that it has not justified, under sections 29(1), 30(1)(a), 31(1)(a) or 32(1)(a), its refusal to release the remainder of the records and I direct their release, subject to the redaction of the small amounts of personal information contained within the records.
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 requester 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