Decision
Mr Y and the Office of the Revenue Commissioners (the Revenue)
From Office of the Information Commissioner (OIC)
Case number: 110239
Published on
From Office of the Information Commissioner (OIC)
Case number: 110239
Published on
Whether the Revenue was justified in refusing to fully release certain records (including expert reports) relating to the applicant's tax liability for a particular year and to an Opinion issued to him under section 811 of the Taxes Consolidation Act 1997 (the Opinion)
19 May 2014
On 4 August 2011, the applicant made an FOI request for "[a]ll records (whether in electronic format or otherwise) in connection with [his] tax liability for [a specified year]"; "all records in connection with [the Opinion], including but not limited to the file sent to the Authorised Officer"; and all emails and memoranda prepared, sent or received by specified staff of the Revenue in connection with the applicant's tax affairs. A fourth element of the request was withdrawn on 10 August 2011, details of which need not be included in this decision accordingly.
Due to the volume of records at issue, the Revenue extended the period for consideration of the FOI request by four weeks, and issued its decision on 30 September 2011. Of the 2,130 pages of records it considered relevant to the request, the Revenue released 592, partially released 36, and fully withheld the remaining 1,502 pages, citing a number of provisions of the FOI Act as applicable. The applicant sought an internal review of this decision on 26 October 2011. The Revenue issued its internal review decision on 18 November 2011, further to which it released a small number of additional pages but upheld its refusal of the remainder. On 14 December 2011, the applicant sought a review by this Office of the Revenue's refusal to fully release all relevant records.
On 24 April 2013, the applicant narrowed the scope of the review to a number of records, amounting to approximately 900 pages, and also excluded the names and biographical details of experts engaged by the Revenue in the course of assessing his tax liability. The Revenue subsequently partially released a number of the records concerned.
[Note: Although the FOI request, subsequent appeals, and correspondence with this Office were sent via the applicant's tax advisors, I have referred to such contacts as having been with the applicant himself for the sake of convenience.]
In carrying out my review, I have had regard to the records at issue (which were provided to this Office for the purposes of my review); to correspondence between the Revenue and the applicant as set out above; to details of various contacts between this Office and the Revenue; and to details of various contacts between this Office and the applicant, particularly a letter sent to him by Ms Anne Lyons, Investigator, on 19 February 2014, to which no reply has been received. I have had regard also to the provisions of the FOI Act.
The scope of this review is concerned with whether the Revenue has justified its refusal of those documents listed below under the heading "The Records At Issue".
Section 8(4) does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to the consideration of the public interest, where required). It is also relevant that the Courts have found the release of a record under FOI to be equivalent to its release to the world at large. Furthermore, as this review is conducted de novo, it thus takes account of all relevant facts and circumstances applying as at the date of the ensuing decision.
Finally, and importantly, while the FOI Act requires me to provide reasons for decisions, section 43(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. While, thus, the reasons for my decision refer to the content of the records in a very general sense, I nonetheless have had proper regard to the requirements of section 34(12)(b) of the Act, which places the onus on the Revenue to justify, to this Office's satisfaction, its refusal to fully grant the request.
Ms Lyons' letter to the applicant of 19 February 2014 referred him to those records to which the scope of the review had been narrowed on 24 April 2013, and listed those excerpts thereof that she understood to have been subsequently released by the Revenue. She also identified those excerpts that contained the names and biographical details of the experts (including the record entirely comprised of pages 250-255 on Folder B), which the applicant had said were not required. She told the applicant that, accordingly, this review would be confined to the Revenue's refusal of the following:
Folder B
Folder C
Folder D
The Investigator also told the applicant that certain of the above withheld details comprised names of, and certain information relating to, other taxpayers. She explained why she considered section 28 (a provision that exempts personal information) and section 26(1)(b) (a provision that exempts information subject to a duty of confidence) to apply to the details concerned. She told the applicant she was presuming that he accepts he is not entitled to the details concerned, and that there was no need for this decision to make any findings on such material, accordingly. Although invited to, the applicant has not objected to the Investigator's presumptions. Neither, as he was invited to do, has he identified any further element of the above records that he considers not to have been released, as claimed by the Revenue.
Therefore, I have proceeded on the basis that there is no dispute over the extent to which the records listed above are subject to review, and that I need not consider further any personal information concerning other taxpayers that is contained therein. In any event, it is clear that the applicant's FOI request was treated as a request for records relating to his tax affairs only.
The details at issue can therefore be summarised as follows: Some records are entirely comprised of expert reports, with one such record including correspondence with the relevant expert. The remaining withheld details are largely contained in various drafts of the section 811 report (a report that is submitted to the Authorised Officer for him or her to decide whether an Opinion under section 811 should be issued). Some of the details withheld from the draft section 811 reports are further copies of the experts' reports along with references to, and the Revenue's analyses of, the experts' views. Finally, a very small number of the paragraphs withheld from the draft section 811 reports can be described as comprising the Revenue's own thoughts on various relevant issues. The remaining records comprise internal Revenue records regarding its investigation. The Revenue has claimed a number of exemptions in relation to these records, including sections 22(1)(a) and 23(1)(a)(iv) of the FOI Act.
Section 22(1)(a) of the FOI Act provides that a record shall be withheld where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest.
Previous decisions from this Office have accepted that legal professional privilege enables a client to maintain the confidentiality of two types of communication:
In considering the second type of communication above (to which I will refer in this decision, where appropriate, as records subject to "litigation privilege"), I have had regard to the High Court's adoption of what is generally known as the "dominant purpose test", in the case of Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289. O'Hanlon J.'s judgment of 31 October 1986 held that, in order to attract legal professional privilege, "the dominant purpose for the document coming into existence in the first place should have been the purpose of preparing for litigation then apprehended or threatened" and found that "once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege."
It is also accepted by this Office that, in applying the rule on legal professional privilege, litigation encompasses not only court proceedings but also proceedings before tribunals exercising judicial functions, such as the Appeal Commissioners.
The Revenue maintains that it "apprehended" litigation from a very early stage in its dealings with the applicant; that the remaining records the subject of this review were created further to that apprehended litigation; and are thus exempt under section 22(1)(a) of the FOI Act.
In response to this Office's initial view that Revenue created the records while acting in the course of its normal duties, and that litigation could fairly be regarded as having been apprehended, or threatened, only when the section 811 opinion had been issued, or appealed, the Revenue argued as follows:
Further to an Inspector's initial assessment of the applicant's Protective Notification (which I understand to be a voluntary mechanism designed to prevent a taxpayer from surcharge and interest should the notified transaction ultimately be found to be a tax avoidance transaction) and self assessment of his tax liabilities, its Inspector formed suspicions as to the bona fides of that assessment. He decided to engage experts to support the Revenue's understanding of the transactions at issue, and to be called as expert witnesses should the need arise.
The Revenue emphasises the amount of money at issue, which is substantial, and the complex nature of the transactions entered into for the purpose of gaining a tax benefit. It also says that appeals have ensued in all but one recent case involving section 811 Opinions (i.e. "in excess of 100" appeals). Thus, the Revenue says it "fully expected or anticipated that the taxpayer would challenge any determination as to an increased tax liability" i.e. it maintains that it had a reasonable basis on which to apprehend litigation arising from any determination that the applicant was not entitled to the tax benefit he was seeking.
In arguing that the Commissioner should accept that the records at issue were created with the dominant purpose of preparation for apprehended litigation, the Revenue referred to the High Court judgment, dated 13 November 1987, of O'Hanlon J. in the case of P.J. Carrigan Limited and P.J Carrigan v Norwich Union Fire Society Limited and Scottish Union and National Insurance Company [1987] IR 618 (to which I will refer as "the Carrigan case"). It also cited the 15 March 2013 judgment of Cooke J. in the case of Rhatigan & Ors v Eagle Star Life Assurance Company of Ireland [2013] IEHC 139 (which I consider appropriate to consider in light of the de novo nature of this review, notwithstanding that the judgment post-dates the Revenue's original and internal review decisions on the request). I will refer to this as "the Rhatigan case".
In the Carrigan case, the plaintiffs' premises was insured by the defendants and was destroyed by fire in 1981. The defendants, having been notified of the loss of the premises, immediately commissioned a report from a firm of loss adjusters. In 1983, the plaintiffs commenced proceedings against the defendants to recover their loss, in the course of which discovery of the loss adjusters' report was sought.
In refusing the discovery sought, O'Hanlon J. was satisfied that "the possibility of repudiating liability under the policy was a very real factor in [the insurance company's] thinking from the time the claim to be indemnified was made ... and that when commissioning [the loss adjuster report] they were concerned to obtain not merely an evaluation of the claim in terms of financial loss but also whatever expert advice could be given as to the circumstances in which the fire broke out. They already viewed the claim with some suspicion and wished to know whether any evidence available at the scene of the fire suggested that their suspicions were well founded. In other words, they were, even at that early stage, contemplating the possibility of a showdown with [Carrigan] in which they ... might well decide to repudiate liability under the policy, and the plaintiffs in turn would then have to decide whether they were prepared to embark on litigation to enforce their claims under the policy. While no litigation was threatened at the time the report was commissioned, I am satisfied that it was apprehended, in the thinking of the defendants, and that this apprehension constituted a dominant purpose in looking for the report. "
In the Rhatigan case, the plaintiffs sought payment of a sum of €2 million arising from a life insurance policy taken out by the late Noel Rhatigan. The policy at issue was issued on 12 May 2004, with a commencement date of 1 June 2004; the deceased was diagnosed with cancer on 8 June 2004 and died in August of that year. The policy was later repudiated by the defendant for various reasons, including non-disclosure of medical history. It appears that litigation was first intimated by the plaintiff on 10 August 2006, and the case before the Courts concerned the plaintiffs' application for discovery of an exchange of letters between the defendant and two of its re-insurers, dated between September 2004 and 10 August 2006. The defendant contended that it had litigation in contemplation from late August 2004, when its suspicions were raised by the late Mr Rhatigan's bank's request for a "terminal illness claim form" in respect of a person that had apparently been in good health less than three months before. It maintained that, having been notified of Mr Rhatigan's death on 1 September 2004, it immediately wrote to his GP seeking a report with a view to establishing non-disclosure of medical history.
In refusing the discovery sought, Cooke J. had regard to the comments of McCracken J. in Fyffes v DCC [2005]1 IR 59 at page 84, who said that the principle of privilege in the preparation or conduct of litigation requires "that a litigant must be in a position to communicate freely with his or her legal advisors, and further must be entitled to obtain expert evidence from third parties to assist, not only in the preparation of the case, but in the assessment as to whether there is any case to be made." Cooke J. also said that a "decision on the part of a life insurer to repudiate such a policy is clearly one of importance which can be taken only after appropriate investigation as to the availability of reliable information which will support the grounds which might be invoked for the purpose. Where the payment otherwise due under the policy is a substantial sum it is clear that in deciding to repudiate, the company will inevitably have to take into account the likelihood of the repudiation being contested by litigation. Accordingly, the very investigation of possible grounds for repudiation will be bound with an assessment as to the ability of the company to stand over the repudiation in the event of its being sued on the policy." He considered the "immediate request for a medical report" to demonstrate that "in the early days of September 2004 the defendant's staff were already setting about the gathering of information and evidence in order to substantiate their suspicions in contemplation of repudiating liability under the policy. In the judgment of the Court, where the litigation in which the claim for privilege arises relates to a substantial benefit which has been repudiated under an insurance policy, the taking of the decision to repudiate is so likely to provoke litigation that the steps taken by the insurer towards making such a decision must necessarily be characterised as steps taken in apprehension of litigation." Furthermore, Cooke J. noted that "[a]though the letters may appear in this particular case to be distant in point of time from the ultimate commencement of proceedings, it is the dominant purpose for which they were written which attracts the application of the principle, and in the words of McCracken cited above, this includes the purposes of assessing 'whether there is any case to be made.'"
I note the Revenue's view as to the complexity of the transactions the subject of the claimed tax benefit, the amount of tax benefit at issue (which seems to me to be "substantial" as per Cooke J.), and its contention that its Inspector formed suspicions from an early stage. I particularly note the Revenue's cited experience as to the extent to which Opinions issued by it have been appealed. The Revenue has also highlighted comments in a small number of early records on its files, which seem to me to support its contention that it anticipated legal challenge from the applicant.
I am satisfied, from certain records copied to this Office by the Revenue that, in the circumstances of the case, the decision to engage the experts was taken reasonably speedily, and that the experts' initial reports gave advice to the Revenue as to information it might wish to obtain from the applicant, and additional lines of enquiry it might wish to pursue.
In line with the comments of Cooke J., I accept that a decision by the Revenue to issue a section 811 Opinion is so likely to provoke litigation that the steps taken in making such a decision can be characterised as steps taken in apprehension of litigation. However, it seems to me that this, of itself, does not provide a sufficient basis for litigation privilege to apply. In my view, the Revenue must be able to show that the dominant purpose for the creation of the records at issue was apprehended litigation.
By way of contrast to the Carrigan and Rhatigan judgments, I have also considered the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135, which related to a claim for damages arising out of a flood that occurred in the River Lee in 2009. I will refer to this as the "ESB judgment". The plaintiff sought discovery of certain documents prepared by the ESB following the flood, as well as certain documents created following three earlier floods.
In granting the discovery sought, Justice Finlay Geoghegan noted certain relevant principles applicable to a claim to litigation privilege, including, having regard to Gallagher v Stanley [1998] 2 I.R 267, that: "it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation"; and the dominant purpose of the document is a "matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created". She also noted, having regard to Woori Bank and Downey v Murray [1988] N.I. 600, that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action."
In the case concerned, the ESB deposed that the dominant purpose in seeking certain information from certain staff, and preparation of witness statements, was to prepare for litigation. The witness statements were headed "Privileged and Confidential" and followed by a statement "this statement is prepared for the purpose of consideration by ESB's legal advisers in contemplation of proceedings against ESB". However, Justice Finlay Geoghegan said it was "accepted that such a statement is not determinative of the purpose or purposes of the preparation of the statements." She went on to find that there were "other potential purposes" for the production of these documents, which appeared to her to "have been an equal purpose" in their preparation. She considered the defendant in that case not to have persuaded her that the dominant purpose for preparation of the documents was for use in apprehended or threatened litigation. As regard the witness statements in particular, she stated that "[n]o proper report on the flood event could be prepared without such primary and basic information."
Both O'Hanlon J. and Cooke J. were clearly satisfied on the basis of the particular circumstances arising in the Carrigan and Rhatigan cases that the dominant purpose threshold was met in relation to the records at issue. However, it is clear from the ESB judgment that the dominant purpose threshold is not met in a case where there are two equal purposes for a document's creation, even if one of those purposes is preparation for litigation.
In the circumstances of this particular case, it seems to me that the relevant records were created at least for the purpose of making a decision on the merits of the tax benefit being sought. While I accept the Revenue's argument that apprehended litigation was also a purpose, I am not satisfied that this was the dominant purpose. As Finlay Geoghegan J. noted, the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action." Furthermore, in a review before me under the FOI Act, I must have regard to section 34(12)(b) which provides that the onus rests with the public body of satisfying me that its decision to refuse access was justified. Accordingly, I find that the Revenue has not justified its decision to refuse access to the records at issue on the basis that they attract "litigation privilege " and are exempt, accordingly, under section 22(1)(a) of the FOI Act.
However, having examined the records, I am satisfied that records 335-337 and 338-340 on Folder D are drafts of a request for legal advice from the Revenue's legal advisors. I consider them to be communications captured by the first limb of legal professional privilege. Noting Justice Finlay Geoghegan's 's reference to the permanent duration of such privilege (i.e. that "unless waived, [what can generally be described as legal advice privilege] lasts forever"), I find these records to be exempt under section 22(1)(a) accordingly.
Section 23(1)(a)(iv) provides for the refusal of a record where, in the opinion of the head of the body, access to the record could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.
I understand that the applicant sought a Judicial Review on foot of the process employed by the Revenue in issuing the Opinion to him, and that he has appealed to the Supreme Court in respect of the High Court's judgment in favour of the Revenue. I also understand that, pending the outcome of that Supreme Court appeal, the applicant has obtained a stay on any appeal to the Appeal Commissioners concerning the Revenue's substantive decision on his claim for a tax benefit. The Appeals Commissioners' decision may, in turn, be appealed to the Courts.
In the early stages of this review, the applicant argued that legal professional privilege could not be claimed over the records at issue because the Opinion had issued to him, and because the expert reports "would have to be produced in Court". The applicant could thus be taken as arguing that access to the records at issue is required in order to comply with the audi alteram partem rule, and, in turn, that the fairness of the hearings before the Appeals Commissioners would not be impacted upon if the details upon which the Revenue's submission may be based were to be provided to him now.
The audi alteram partem rule requires that (i) a person has adequate prior notice of any charge or decision made against him, including the right to all information relevant to the issue, particularly the details of the case against him and (ii) a person is afforded appropriate and adequate facilities for making the best possible case in reply.
I am satisfied that the withheld details at issue contain significantly more detailed information about the Revenue's substantive decision than is contained in the Opinion issued to applicant. However, it must be presumed that the Revenue's Opinion contains sufficient detail to enable the applicant to initiate an appeal of the Revenue's substantive decision.
It must be presumed also that the Appeal Commissioners' procedures are fair and in accordance with the principles of natural justice. The Appeal Commissioners' website (which I accept is a tribunal exercising judicial functions) states that "[h]earings are somewhat informal within the parameters of fair procedure. The hearing usually begins with the submission of the taxpayer which is followed by that of the Revenue Commissioners and ends with the response of the taxpayer to the submission of the Revenue Commissioners. Witnesses may be called by either side." According to the Revenue, the details in the records at issue "far exceed" what are normally provided to taxpayers in advance submissions to the Appeal Commissioners.
Accordingly, I do not accept any contention that might be made that access to the records at issue is required in order to comply with the audi alteram partem rule.
The records at issue in this case will, no doubt, inform the basis of the Revenue's defence in the appeal of its substantive decision. It seems to me that release of those details now would, therefore, disclose aspects of the case that the Revenue might wish to put before the Appeals Commissioners. In essence, if the records at issue were released, the applicant would become privy to sensitive details additional to, and significantly in advance of, what he would otherwise receive in the course of the hearing before the Appeals Commissioners. He would therefore have substantially more scope, than that provided for by the Appeal Commissioners' normal procedures, to analyse the basis for the Revenue's decision, to develop rebutting arguments and gather relevant evidence, and to prepare submissions to the Appeals Commissioners and possible cross examinations of the experts should they be called by the Revenue as witnesses. In other words, release of the records under FOI to the applicant would place him in a more advantageous position in any ensuing Appeal Commissioners' hearing, than would otherwise have been the case further to the Appeal Commissioners' normal procedures. The Revenue would not be able to gain a similar level of early insight into the applicant's case. Furthermore, release of the records at issue would seem to me to remove any discretion the Revenue would otherwise have had in selecting those details that it wished to put forward as the best possible defence.
Based on the lack of reciprocity, the potential for making a possibly detrimental inroad into the Revenue's ability to prepare confidentially for the conduct of proceedings before the Appeal Commissioners, and my finding that access to the records concerned is not required in order to comply with the audi alteram partem rule, I am satisfied that it could reasonably be expected that release in this case could prejudice or impair the fairness of any proceedings before the Appeals Commissioners (and, in turn, any resulting appeals to the Courts).
Thus, I accept that release of the remaining records at issue (i.e. the expert reports, whether as stand-alone documents, or as part of the draft section 811 reports, and any related correspondence with the experts; the remaining details in the draft section 811 reports which comprise of the Revenue's own references to and/or analysis of the expert reports and its own thoughts on various issues arising; and the internal Revenue records regarding its investigation) are exempt under section 23(1)(a)(iv) of the FOI Act. I find accordingly (and, if it were necessary, I would also find records 335-337 and 338-340 on Folder D to be similarly exempt).
The release in the public interest, of a record to which section 23(1)(a)(iv) applies, need only be considered if one of three conditions is met (as per section 23(3) of the FOI Act). The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law ... is not authorised by law or contravenes any law". The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law" and the third condition is that it contains information concerning "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". The details to which I have found section 23(1)(a)(iv) to apply do not contain any information that satisfies these conditions. Accordingly, I am satisfied that I need not consider the public interest in respect of such details, and that they remain exempt under 23(1)(a)(iv) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Revenue's refusal of the details subject to review in this case.
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.
Peter Tyndall
Information Commissioner