Decision
Ms Z and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: OIC-154274-Z3P8M1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154274-Z3P8M1
Published on
Whether Revenue was justified in refusing access, under section 15(1)(a) of the FOI Act, to records/information sought by the applicant relating to a certificate issued under Section 980 of the Taxes Consolidation Act 1997, on the grounds that no records containing the information sought exists or can be found
This case has its background in a request for information about a certificate issued by Revenue in 2006 under Section 980 of the Taxes Consolidation Act 1997. Section 980, as I understand it, concerns the process of taxation relating to the disposal of certain specified assets.
In her request dated 15 October 2024, the applicant provided Revenue with a number she said “is a capital gains certificate 980 number” and requested:
1) confirmation that a 980 certificate number is in fact a Revenue issued 980 certificate number, and
2) confirmation that this certificate 980 number exists in Revenue computer records.
On 7 November 2024, Revenue part-granted the applicant’s request. In the first instance, Revenue noted that requests for information or clarification, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or clarification can be reasonably inferred to be a request for records containing the information sought. In regard to part 1 of the applicant’s request, Revenue released what it described as a blank 980 certificate number that was in place in 2006. The released record is titled ‘Form CG50’ and is an application for a 980 certificate. Revenue refused part 2 of the request under section 15(1)(a) of the FOI Act on the basis that no record was found under the reference number provided by the applicant in her request.
On 8 November 2024, the applicant requested an internal review of Revenue’s decision. She said that Part 1 of her request had not been addressed. In regard to Part 2, the applicant sent a copy of the 980 certificate from 2006 to Revenue as further context for the internal review. On 2 December 2024, Revenue affirmed its original decision. It stated that a thorough search was carried out for records which might have contained the information the applicant was looking for. Revenue said that this resulted in the identification of a blank 980 certificate number that was in place in 2006, and so this was provided in answer to Part 1 of the request. For Part 2, Revenue said that this was subject of a previous Data Access Request (DAR) which was refused on the basis that the record is no longer held by Revenue in line with its record retention policy. Revenue said that the Data Protection Commission subsequently examined the matter and confirmed this position to the applicant on 18 September 2024. After receiving the applicant’s FOI request, Revenue said that a search was conducted under the given reference number. It stated that no records were found under this number. Revenue said that another search was conducted as part of the internal review and, again, no records were found.
On 5 December 2024, the applicant applied to this Office for a review of Revenue’s decision. The applicant provided detailed submissions about the background to her case and her contention that Revenue ought to hold the information sought.
During the course of this review, the Investigating Officer provided the applicant with details of submissions made by Revenue to this Office and invited the applicant to make submissions in the matter, which she duly did.
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 correspondence outlined above and to the submissions made by Revenue and the applicant. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Revenue was justified in its decision, under section 15(1)(a) of the FOI Act, to refuse access to the records/information sought by the applicant relating to the ‘980 certificate’, on the grounds that no further records exist or can be found.
Before I address the substantive issues arising in this case, I wish to address a number of preliminary matters.
First, from reading the applicant’s application to this Office and her submissions, it is my understanding that her FOI request is part of a wider context of a taxation and housing ownership dispute. It is important to note that the role of this Office is not to determine what records should exist, to adjudicate on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role is confined to reviewing the decision taken by the FOI body on the applicant’s FOI request for records.
Second, in her submissions to this Office, the applicant highlighted correspondence she had with the Comptroller and Auditor General (C&AG) and the National Archives concerning matters related to the subject of her request in this case. The applicant also referenced a previous case she had with this Office a few years ago relating to stamp duty. Firstly, it is important to note that this review is concerned solely with Revenue’s decision in this current case. Furthermore, section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. As such, this Office cannot have regard to the reasons given by the applicant for seeking access to the records concerned in considering whether Revenue was justified in refusing the request.
Finally, while I note that Revenue has already explained this to the applicant, it is important to note that the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
Revenue provided this Office with details of the searches it carried out to locate the records sought and its rationale for concluding that the records/information sought does not exist, details of which were provided to the applicant. While I do not intend to repeat those details in full here, I can confirm that I have had regard to them, and to the applicant’s responses, for the purposes of this review.
In its submissions to this Office, Revenue provided a copy of its Record Management Guidelines and its Record Retention and Disposal Policy. Revenue stated that all records created or received by Revenue staff in the course of their duties on behalf of the organisation are retained for as long as they are required to meet legal, administrative and operational requirements, after which they undergo authorised destruction, retention or transfer to the National Archives. It said that the default standard retention period for all Revenue records maintained by Revenue staff is current plus ten years, that is records are retained while current plus an additional ten years from when they become non-current.
Revenue stated that, in accordance with Section 7 of the National Archives 1986, no class of Revenue records can be disposed of without signed authorisation from the Director of the National Archives. Having regard to the dates of records in this case i.e. 2006, Revenue said that they would have fallen to be destroyed under the Record Retention Schedule, which provides that Capital Gains Tax (CGT) annual case files can by destroyed after ten years of completion of activity. Revenue included a copy of the relevant signed Disposal Authorisation of Department Records in its submissions for this review.
The Investigating Officer asked Revenue to explain the details of its search for records. Revenue responded by stating that, on receipt of the request, its FOI Unit circulated the request to all areas in the Personal Division (PD) and Business Division (BD) where it would be expected that such a record would be located if it exists. Instructions on how to conduct the search and extract information from the relevant Revenue systems were also provided.
Revenue stated that searches were conducted of all relevant files, systems and email accounts. All PD and BD related customer records for the person in question were searched which included email, the Integrated Taxation Processing System (ITP), Common Registration System (CRS), Integrated Case Management, (ICM), Active Intervention Management (AIM), Integrated Business Intelligence (IBI), Integrated Correspondence (IC) and all paper files.
Revenue said that the retention period for the type of record referred to in the applicant’s request is ten years. It said the record the applicant is referring to is from 2006. Revenue stated that it did an extensive search, but established that such records have been destroyed in line with its retention policy.
The Investigating Officer asked Revenue if there was any possibility that the reference number provided by the applicant was incorrectly administered. Revenue responded by saying that the certificate submitted by the applicant at the internal review stage is on Revenue-headed paper signed by an Inspector of Taxes, and so it is accepted in good faith that it is the correct reference number.
Revenue stated that Part 1 of the applicant’s request was answered by providing a blank 980 certificate form. It said that it could not grant the second part of the request because it no longer holds the certificate.
In her submissions to this Office, the applicant stated that the record that Revenue released to her does not address her request. She said that a CG50 form is not the same as a 980 certificate. For part 2 of the request, the applicant stated that the did not believe that the certificate 980 number could have been deleted from Revenue’s records.
The applicant also contacted the National Archives in relation to the point in Revenue’s submission saying that the Archives authorised the destruction of records from 2006. The applicant provided this Office with a copy of the response she received from the National Archives in response to her query. The Archives stated that the records did not warrant permanent retention, but the disposal authorisation only applied to paper records.
The Investigating Officer asked Revenue about the retention of electronic records related to this case. Revenue stated that the copy of the 980 certificate that the applicant provided at the internal review is the only copy of the certificate available to Revenue. It said that this record was issued in paper format in August 2006. Due to the processes and systems in place in 2006, Revenue said that an electronic copy was not created when the application was processed and would not have been created electronically since then. It said that this was confirmed from the extensive electronic searches that Revenue conducted when the request was received, at Internal Review stage and again following the appeal to this Office. Revenue stated that, as the record never existed electronically, the question of electronic destruction/deletion is not relevant.
Revenue also stated that a CG50 form is the application form which provides the information required for a 980 certificate. Revenue highlighted that the applicant sought confirmation that a 980 certificate number is in fact a revenue issued 980 certificate number. It reiterated that requests for information or clarification, as opposed to requests for records, were not valid requests under the FOI Act, except to the extent that a request for information or clarification can reasonably be inferred to be a request for records containing the information sought. Revenue said that it was of the position that the best way it could confirm that a 980 certificate number is Revenue-issued was to release a blank Form CG50 which is an Application for Certificate under Section 980 of the Taxes Consolidation Act 1997, as the decision maker believed this record contained the information sought.
The Investigating Officer asked Revenue if the 980 certificate number provided by the applicant exists in any capacity in Revenue’s computerised records. Revenue said the certificate number is recorded on Revenue systems, but there is no copy of the certificate that issued on Revenue systems. It said the only copy of the record currently available to Revenue is the one provided by the applicant at internal review.
Revenue’s position is that it does not hold any records relevant to the applicant’s request. Revenue attempted to answer Part 1 of the applicant’s request for confirmation that a certain certificate was issued by Revenue by releasing the CG50 form. Revenue believed this was the only and best way to fulfil the request. If an FOI body does not hold a record that answers the question posed, that is the end of the matter. The FOI Act does not require FOI bodies to create records in response to an FOI request, apart from a specific requirement under section 17(4) of the Act to extract records or existing information held on electronic devices which does not apply in this case.
Revenue provided details of the steps it undertook to locate the record sought in Part 2 of the applicant’s request and explained its record retention policy in relation to such records. While I have noted the applicant’s comments about the appropriateness of Revenue’s record retention policy in regard to the records at issue, this Office has no role in adjudicating on Revenue’s record retention policy or on how it performs its functions generally. It is important to note that the FOI Act provides for a right of access to records held by FOI bodies. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the appropriateness or otherwise of the absence of certain records. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
Having regard to the information before this Office, and in the absence of evidence to the contrary, I am satisfied that Revenue has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why it is unable to locate any relevant records. In the circumstances, I find that Revenue was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator