Decision
Mr W and Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: 130002
Published on
From Office of the Information Commissioner (OIC)
Case number: 130002
Published on
Whether the Revenue has justified its decision to refuse to release to the applicant records relating to an investigation into his tax affairs relying on the exemptions provided for in sections 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 refused the request on 31 May 2012 on the grounds that all of the records were exempt under 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 records.
The applicant's tax consultant sought an internal review of this decision on 15 June 2012, and, in its decision 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.
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. The Revenue informed the applicant of its revised position on 23 June 2014.
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 Mr. Philpott, 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 and the contents of the records.
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. However, records which were based on CRO information, but which the Revenue accessed through its 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. The numbered records which fall under the various categories are identifiable by reference to the Revenue's Schedule supplied to the applicant's consultant on 23 June 2014.
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 (47) 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 section 23(1)(a)(viii) applies. 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
In addition to withholding, in full or in part, 14 records under section 26(1)(b) of the FOI Act, seven of the records have also been withheld, under section 28(1) of the FOI Act, which prohibits the release of personal information. As will be clear from my finding above that the records in question containing information about taxpayers other than the applicant himself are exempt under section 26(1)(b), I do not consider it necessary to examine the application by the Revenue of section 28 to those same records.
Having carried out a review under section 34(2) of the Freedom of Information 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