Cinneadh
Mr X and Office of the Revenue Commissioners
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-115307-G3S4Y0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-115307-G3S4Y0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Revenue was justified in refusing access to all information held about the applicant from dates in 2013, 2015, 2016 and 2017
13 October 2022
The applicant’s FOI request of 22 April 2021 sought access to “all information regarding [him]” from 7 December 2017, 6 July 2017, 18 February 2016, 25 November 2015 and 21 November 2013.
Revenue’s decision of 26 May 2021 issued in two parts. Business Division (BD) withheld 78 records under section 15(1)(i) of the FOI Act on the basis that they had already been released to the applicant. It said that, otherwise, 73 records were covered by the request, of which it released 51 in full and 21 in part, and withheld one in full. It relied on sections 30(1)(a) (effectiveness of audits/audit procedures), 32(1)(a)(i) (investigation of offences) and 37(1) (personal information) of the FOI Act in relation to the withheld information.
Collector General’s Division (CGD) identified nine records as covered by the request, of which it fully withheld six under section 15(1)(i) of the FOI Act. It released the other three records in part and relied on sections 30(1)(a) and 37(1) in relation to the withheld excerpts.
The applicant sought an internal review on 20 June 2021 and said that minutes of certain meetings should also have been considered for release.
The Revenue’s internal review decision again issued in two parts. On 8 July 2021, CGD said that it was satisfied that reasonable searches had been carried out for records covered by the request (in effect, a reliance on section 15(1)(a) of the FOI Act) and otherwise affirmed its decision. On 9 July 2021, BD said that no minutes were created of the relevant meetings and refused access to them under section 15(1)(a) of the FOI Act on the basis that the records do not exist. Otherwise, it affirmed its decision on the request.
The applicant applied to this Office for a review of Revenue’s decision, which was received on 3 November 2021. During the review, Revenue indicated that it would release further various details to the applicant.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, Revenue and the applicant. I have also had regard to the contents of the records at issue and to the provisions of the FOI Act.
This review is confined to whether Revenue’s decision on the applicant’s request was justified under the FOI Act.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request. Furthermore, my review does not extend to examining, making findings on or taking account of Revenue’s dealings with him in general.
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. For this reason, the descriptions I can give of the records and of the reasons for certain parts of my decision are somewhat limited.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large.
Finally, I have had regard to the comments of the Supreme Court’s judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment). The Supreme Court said “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must exercise his inquisitorial remit to 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.
Section 15(1)(a) – further records exist/adequacy of search
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.
When seeking an internal review, the applicant said that the records should include “minutes of the meetings held in the Navan office from Jan-13 in Mullingar, [his agent’s] office, right up to 30-3-15 in Navan office …”. Revenue subsequently refused access to these under section 15(1)(a) of the FOI Act. BD said that the officers present had confirmed that no minutes of the meetings held in the Revenue Navan office were created and that the only available record of the meetings (records 46 and 49) had already been released. CGD said that reasonable searches had been carried out. This Office’s Investigator invited Revenue’s submissions in relation to these matters.
Revenue’s submission
Revenue remains of the position that section 15(1)(a) applies. It says that it provides guidelines, information and training to its staff in relation to their various responsibilities for the management and storage of records, including in relation to emails and paper and electronic records. It says that, in general, all records are retained for ten years after they become non-current and that, having regard to the dates of records in this case, no records would have fallen to be destroyed.
Revenue says that hard-copy and electronic records are stored in various locations such as filing cabinets in offices, storage facilities, intranet document libraries, shared drives, personal drives, Revenue Case Management (RCM), Active Intervention Management (AIM) and its new file management system Navigate Access Share Collaborate (NASC).
Revenue maintains that CGD and BD have taken all reasonable steps to look for records covered by the request and that no further records can be identified.
CGD
Revenue says that CGD’s main function is the collection of declared taxes. It says that the CGD units most likely to hold relevant records were the Debt Management Unit; the Payment Accounting and Banking Unit; the Direct Debit Unit; the Tax Relief at Source unit; the Call Centre; and the Dedicated Pursuit Unit (DPU). It says that these units were asked to search for records, and were given instructions on how various systems should be searched and a deadline for reply. It says that senior staff within CGD were also emailed to ensure that no relevant area/unit was omitted.
Revenue says that it searched all CGD-related customer records in electronic files across all Revenue Systems including:
It says that the DPU would previously have carried out paper file searches but due to limited access to the office arising from the Covid-19 pandemic, all their files have been scanned electronically onto a particular drive. Revenue says that further to searches, the drive was found to hold no records.
In relation to the particular type of record referred to by the applicant, Revenue says that CGD caseworkers dealing with a customer do not take minutes but rather update communications as notes on that customer’s file on the case-working application. It says that CGD did not have a meeting with the applicant or his agent and that any telephone correspondence between the applicant, his agent and Revenue were recorded in the notes recorded on the Revenue systems.
BD
Revenue says that the records held by BD comprise of a paper audit file, and electronic files including email systems. It says that BD confirms that it searched the Integrated Case Management system; the Integrated Tax Processing system; the Common Registration System; the Integrated Business Intelligence system; the Integrated Correspondence system; email records of the audit manager and auditors; electronic drives; and individual computers for the staff involved in the meetings and working on this file.
Revenue says that a number of BD staff who attended the meetings referred to have since retired and that electronic records for such staff are no longer available. It says that any BD staff who attended any of the meetings and who currently still work for Revenue were contacted and asked to carry out searches on all email and Revenue systems.
The applicant’s submission
Other than saying that there should exist particular minutes, the applicant’s correspondence with Revenue and his initial contacts with this Office did not highlight any further records that he felt are missing, or say why this is the case. On 20 May 2022, the Investigator provided him with details of Revenue’s submission, and invited him to comment.
The applicant responded to say that the meetings in Revenue’s Navan office were recorded on a voice recorder in the middle of the table. He says that all recordings seemed to be lost and that Revenue will not accept his minutes.
The applicant names various people that he says were at the meeting in his agent’s office in January or early February 2013. He says that a Revenue staff member claimed the meeting was held much later in the year, and that he had asked the official to check mileage because only one meeting ever took place in the agent’s office.
Finally, the applicant says that he wants records relating to meetings between various named parties. He says that he was “locked out of ROS online since 2006” by a named official, and also that he had “de-registered for everything in November 2010” but had since been re-registered and wants to know who had signed the form. He says he wants access to “all minutes between revenue and dept of social protection”.
Revenue says that none of the meetings in the Navan office were recorded on a voice recorder. It says that there is a video conferencing unit on the table in the room where the meeting took place, which the applicant may have taken to be a voice recorder. Regarding the meeting in the agent’s office, it says that the named official confirms that he attended one such meeting, and that this was in June 2013. It says that records of correspondence with the Department of Social Protection were identified in this case but have been withheld under various substantive exemption provisions set out in its decisions. It says that records dating from before November 2013 are not covered by this request, although they may have been covered by the applicant’s earlier requests under FOI or data protection (DP) legislation.
Revenue’s position therefore remains that it has taken reasonable steps to look for records covered by this request. As set out above, it also maintains that certain records (i.e. voice recordings and further notes of meetings) do not exist.
Analysis
The scope of this part of the review is as set out earlier, and does not extend to considering the accuracy of any records identified to date. Neither is it this Office’s role to determine or make findings regarding the dates on which meetings were held, or to examine why an FOI body might not accept a person’s record of events.
Section 15(1)(a) is applicable where a record cannot be found after reasonable steps have been taken to look for it, even where that record is accepted to have been created in the first place. The provision does not require exhaustive searches to be carried out. Therefore, while the applicant is dissatisfied with the level and/or content of particular records located to date, this of itself does not provide me with a basis to direct Revenue to carry out further searches for additional such records. As the Investigator also advised the applicant, the scope of his original request cannot be broadened to cover records dating from before 21 November 2013.
Having considered its submissions, I am satisfied that Revenue has taken reasonable steps to look for records covered by the applicant’s request. Although unnecessary for me to go further, I also see no reason to dispute Revenue’s position that it did not create voice recordings of the meetings in its Navan office. I find that section 15(1)(a) applies.
Section 15(1)(i) – records already released
Section 15(1)(i) essentially provides that an FOI body may refuse to grant a request where it relates to records already released to the requester. Revenue withheld various records in this case under section 15(1)(i), on the basis that they are copies of records already released to the applicant. In inviting its submissions in this case, the Investigator asked Revenue to confirm that it had previously fully released the various relevant records.
The applicant has not disputed the Investigator’s understanding that BD has provided him with full copies of various records, as set out in the relevant schedule (and which I do not intend to list here). In the circumstances I find that section 15(1)(i) applies to the records concerned.
CGD applied section 15(1)(1) to records 4-9 of the nine records it identified as covered by the request. However, Revenue confirms that only CGD records 4 and 7 were released in full. The applicant has not disputed that this is the case. In the circumstances I find that section 15(1)(i) applies to CGD records 4 and 7.
However, Revenue says that CGD records 5, 6, 8 and 9 were previously only released in part. I am unable to find that section 15(1)(i) applies to these records in such circumstances. While Revenue now indicates that these four records are exempt in part under sections 30(1)(a) and 37(1) of the FOI Act, it did not make submissions in this regard. Neither has it provided this Office with copies of the records. In addition, the Information Commissioner is not a first instance decision maker. In the circumstances, I am satisfied that the most appropriate decision for me to make on CGD records 5, 6, 8 and 9 is to annul Revenue’s decision on those records, and to direct it to make a fresh decision on them in accordance with the FOI Act.
Section 30(1)(a) – effectiveness of audits/audit procedures
Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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(1)(a) is what is known as a harm-based provision. 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.
The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report.
Submissions
In inviting Revenue’s submissions on the various substantive FOI provisions on which it had relied, the Investigator referred it to this Office’s website for previous decisions made by the Commissioner, and Guidance Notes on certain provisions of the Act. She said that these may be of some assistance in understanding the Commissioner’s approach when considering FOI exemptions. She also referred Revenue to the relevant Sample Questions for FOI Bodies (also available at www.oic.ie), to assist it in addressing the relevant exemption provisions.
The Investigator also noted that certain of the withheld details appeared to concern administrative aspects of the tax appeals process, rather than the substance of the appeal or Revenue’s own investigations, or were comprised of abbreviations of or general reference to Revenue processes, or concerned various factual matters relevant to the applicant (which I cannot describe further here due to the requirements of section 25(3)). Furthermore, she referred Revenue to particular details withheld from BD records 23, 52 and 85, including material that she said she assumed was known to the applicant.
In relation to BD records generally, Revenue responds says that releasing the remaining details to the world at large would prejudice the effectiveness of its audits and investigations, and the procedures and methods employed in conducting them, by alerting non-compliant taxpayers as to its information sources and tools. It says that this would be detrimental to its efforts in confronting non-compliance, by enabling non-compliant taxpayers to take counter measures to limit the effectiveness of these information sources and tools. It says that it would not be in the public interest to release records that would enable non-compliant taxpayers to circumvent the lawful methods it uses to collect the correct taxes and duties due to the State.
In relation to the particular BD records queried by the Investigator, Revenue says that BD record 23 is a caseworker’s analysis of the case for the purposes of grounding a recommendation for approval by senior management. Firstly, Revenue says that it redacted parts of the appendices to this report because they were not completed for the applicant’s case. The applicant has not disputed the Investigator’s view that it is unnecessary for these details to be considered further in this review and I am proceeding accordingly. As for the remainder of BD record 23, Revenue says that it withheld the details concerned under S.30(1)(a) because they contain the “procedures and methods employed in conducting the audit and the risk stratification”.
Revenue says that the details redacted from BD record 85 concern the risk profile of the case and that their release would prejudice the effectiveness of future investigations and audits and methods employed by Revenue.
While Revenue initially withheld BD record 52 under sections 30(1)(a) and 32(1)(a)(i), its submissions refer to the application of sections 31(1)(a) (legal professional privilege, see below) and 32(1)(a)(i). In any event, Revenue says only that the record reveals its communications with a particular party.
In relation to CGD records generally, Revenue says that it redacted internal revenue workings and case plans under section 30(1)(a), on the basis that their disclosure could provide insights into Revenue’s case working methodologies and procedures, thereby prejudicing their effectiveness.
Analysis
Revenue has not disputed the Investigator’s view regarding the content of the withheld information including that it is of an administrative rather than substantive nature, or comprises abbreviations of or general reference to Revenue processes, or concerns various factual details known to the applicant.
Furthermore, while Revenue makes various claims as to the outcomes that could arise from disclosure of the withheld BD records in general and BD records 23 and 85 in particular, it has not explained how those outcomes could arise from release of the details at issue to the world at large in the particular circumstances of this case. For instance, while it says that internal workings, case plans, risk profiles/stratification, information sources and tools would be disclosed by release of the records at issue, it does not say how the applicant or others could use the details at issue to take counter measures to circumvent this particular investigation or other investigations. Neither is it apparent to me from an examination of the particular records at issue how such outcomes could arise.
Revenue may have intended to refer to the application of section 30(1)(a) to BD record 52 rather than section 31(1)(a). However, it has not explained how knowledge of the type or content of the particular communication would enable the applicant or others to take steps to prevent Revenue from making such a communication in future, or from otherwise obtaining information from the party concerned. Furthermore, it seems to me that the type of communication concerned would not of itself be particularly surprising to the applicant or any reasonable person.
In the circumstances, I am not satisfied that section 30(1)(a) applies. I find that none of the records are exempt under this provision. There is no need for me to set out or consider Revenue’s public interest arguments in light of this finding.
Section 31(1)(a) – legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:
Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. LPP belongs to the client and the client has the right to waive this privilege if the client so wishes.
While LPP attaches to communications between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, it does not apply to records of communications for the purpose of obtaining and/or giving legal assistance. For instance, the Commissioner takes the view that correspondence which is of an administrative nature, and does not involve the seeking or giving of legal advice, is not privileged.
Litigation Privilege
Litigation privilege is the second type of LPP referred to above. It attaches to confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. For litigation privilege to apply the records must have been created for the dominant purpose of contemplated/pending litigation. Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied.
Submissions
When inviting Revenue’s submissions on the exemptions it had claimed to date, the Investigator said that it was also open to it to rely on other exemptions provided for under the FOI Act. She said that, in such an event, Revenue should show how the requirements of such exemptions are met in this case, addressing the public interest where relevant. She again referred Revenue to the Sample Questions for FOI Bodies document for assistance.
Revenue’s submission does not claim that further exemptions apply, other than referring to the application of section 31(1)(a) to BD record 52. However, it does not specify the type of privilege it considers to apply to the relevant excerpt, or provide any arguments or relevant factual information as to why the details attract LPP. In light of this, and having examined the record, it is not apparent to me that any details therein are of a sort that attract advice or litigation privilege. I find that section 31(1)(a) does not apply.
However, I note other details in the records that I accept comprise confidential communications made between Revenue and a professional legal adviser for the purpose of obtaining and/or giving legal advice, such that the relevant details attract advice privilege. I find that section 31(1)(a) of the FOI Act applies to details concerned, which are set out in the Appendix to this decision.
Section 32(1)(a)(i) – investigation of offences
Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid.
The fact that the records may relate to matters specified in paragraph (i) does not, in and of itself, establish a link between their release and the harms envisaged in section 32(1)(a)(i).
The FOI body’s submission should explain how the particular details could be expected to cause the relevant harm. It should also consider the reasonableness of any expectation that the harm will occur. The actual content of each record is important. The possibility that the information in the records may already be known or may easily be compiled or prepared may be relevant. Even if release of the records might lead the applicant (and/or others) to deduce certain information, the FOI body must still show how this could be expected to result in the harm envisaged. The passage of time may be relevant, as might be the current stage of a particular function or process.
In relation to section 32(1)(a)(i) in particular, this Office accepts, as a general proposition, that an investigator must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in his or her possession should be made available to a party which is the subject of the investigation. If a party subject to investigation by an FOI body were to have a right to be fully informed at all times of the state of knowledge of the investigating authority, then it would appear to be inevitable that this would impair the investigation of offences.
Submissions
CGD has not refused any information under section 32(1)(a)(i). BD says that it applied this provision to information that could reveal the direction, level or breadth of Revenue investigations and processes of the Tax Appeals Commission, as well as the methodology used by Revenue in its pursuance of cases. It says that such outcomes could seriously prejudice the effectiveness of future cases. It says that the release of the records is not in the public interest as it would reveal the methodologies in use by Revenue in sourcing information and documents in its investigation into the complainant’s tax affairs. As already set out, the relevant material includes record BD 52, which Revenue says concerns its communications with a particular party.
Analysis
As I have already said, Revenue has not disputed the Investigator’s observations regarding the nature of the withheld information. It makes various claims as to the outcomes that could arise from disclosure of the withheld BD records in general without explaining how those outcomes could arise by virtue of release of the withheld material. While I note Revenue’s position that the details disclose internal workings, case plans, risk profiles/stratification, information sources (such as record BD 52) and tools, it does not say how such disclosure could enable the applicant or others to take counter measures to circumvent either this particular investigation or other investigations generally. Neither is it apparent to me from an examination of the records how such outcomes could arise.
In the circumstances, I have no basis to find that section 32(1)(a)(i) of the FOI Act applies in this case.
Section 37 – personal information
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. The fact that the applicant may be aware of some of the information concerned or that he or his agents created some of the records is not relevant to my consideration of section 37(1).
Some of the details to which Revenue applied section 37 comprise contact details of public servants, references to a particular Revenue system and brief excerpts relating to the applicant and his agents. This Office’s Investigator asked Revenue to explain why it had done so.
Revenue says that CGD has since released all details referring to the applicant and his agents and to public servants/contractors. It says that BD intends to do likewise, once it has concluded a review of the records that it decided to carry out further to the request for submissions. If BD has not already concluded this process and released the relevant details, I would ask it to do so without further delay. I note that Revenue does not comment on its apparent refusal of references to Revenue systems under section 37; in any event, I do not accept that such references comprise personal information for the purposes of this provision of the FOI Act.
Revenue says that the remaining information it withheld under section 37(1) comprises names, addresses, contact information, other personal information about identifiable individuals other than the applicant and “information regarding Revenue bank accounts”. It says that it holds personal information on the understanding that it would be treated as confidential.
I do not accept that any information regarding Revenue bank accounts is of a sort that qualifies for exemption under section 37. Having examined all of the withheld information, and mindful of the requirements of section 25(3), I am satisfied that those details set out in the relevant part of the Appendix to this decision are captured by one or more of the examples of what comprises personal information about identifiable individuals other than the applicant. Some of this information relates to the applicant’s agents. Having regard to other details disclosed from the records, I am satisfied that such release would disclose information about those agents in a personal capacity rather than in their capacity of acting on behalf of the applicant.
Some small amounts of the information comprise personal information relating to the applicant that is inextricably linked to the personal information of other identifiable individuals. It follows that it is not possible to separate out information relating solely to the applicant. Even if the individuals’ names were withheld, I am satisfied that they would be identifiable from the context and content of the remaining material.
The applicant may in any event feel that all of the third party information also relates to him, given that it is contained on files relating to his tax affairs. However, section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (i.e. joint personal information).
I find that the relevant details are exempt under section 37(1) of the FOI Act. I must now consider sections 37(2) and (5).
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I have already outlined the provisions of section 37(7) and explained why I do not consider that personal information relating to the applicant can be separated from that of other individuals. I am satisfied that no information falls for release further to section 37(2)(a), and also that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in 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) (“the Rotunda case”). It is noted that a public interest should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
Revenue says that the individuals’ rights to privacy outweigh the public interest in disclosing the personal information concerned. I am satisfied that placing the relevant details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant.
On the other hand, the applicant may feel that he should be given access to the details to maximise his knowledge about Revenue’s treatment of his tax affairs. At the outset, I do not believe it is appropriate to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant may not be happy with Revenue’s treatment of his tax affairs. Furthermore, while I accept that the disclosure of the withheld information would give the applicant some further insight into the matter, in my view such insight would be quite limited. In any event, the fact that any further insight may be gained does not mean that there should be no protection of privacy rights of other individuals.
It seems to me that by releasing certain details from some of the records, Revenue has sought to strike a balance between the competing interests. Having regard to the nature of the remaining information at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Section 41(1)(a) – disclosure prohibited by an enactment
There is a small amount of information (i.e. names, an address and PPSNs) in records BD83 and BD84, concerning third parties that are not identifiable individuals but rather are entities. Section 37(1) cannot apply to such information. Given the context in which they are contained in the records, these details may qualify for exemption under section 36(1)(b) of the FOI Act (commercial sensitivity). However, in my view it is more appropriate to consider them under section 41(1)(a) of the FOI Act, on the basis that the details are covered by the prohibition on disclosure in section 851A of the Taxes Consolidation Act 1997 (the TCA). The Investigator put the applicant on notice of the above matters; however, no comment has been received from him in reply.
S41(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. 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.
I accept that the details concerned reveal the identity of the relevant third party taxpayer 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 (and indeed would also apply to at least some of the details I have found to be exempt under section 37). Section 41(1)(a) does not require the consideration of the public interest. The information at issue is set out in the Appendix to this decision.
Record BD 52 - other
I have already set out Revenue’s general description of record BD 52. In light of that description, and mindful of the requirements of section 25(3), it is important to say that the record does not contain what I would consider to be personal or confidential information for the purposes of sections 37 or 35 of the FOI Act. Neither do I consider it to amount to information concerning the identity of a person who provided information in confidence in relation to the enforcement of a law (section 42(m) of the FOI Act refers).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Revenue’s decision.
I affirm Revenue’s reliance on section 15(1)(a).
I annul Revenue’s application of section 15(1)(i) to CGD records 5, 6, 8 and 9 and I direct it to make a new decision on these records in accordance with the FOI Act. I affirm Revenue’s application of section 15(1)(i) to the rest of the records to which it applied this provision.
I annul Revenue’s application of sections 30(1)(a) and 32(1)(a)(i). I affirm Revenue’s refusal of various details on the basis that sections 31(1)(a), 37(1), and 41(1)(a) of the FOI Act apply to them. For ease of reference, these are all set out in the Appendix to this decision.
I direct Revenue to grant access to the remainder of the withheld information.
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 applicant 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.
Deirdre McGoldrick, Senior Investigator
Case No. OIC-115307-G3S4Y0
Exempt information
Section 31(1)(a)
| Record No. | Exempt details |
| CG3 | Page 3: the withheld sentence |
| Page 6: the withheld sentence | |
| Page 13: the withheld sentence | |
| Page 14: the withheld sentence |
Section 37(1)
| Record No. | Exempt details |
| CG3 | Page 19: the withheld paragraph |
| BD11 | Page 1: a first name, surname and PPS number |
| BD 12 | Page 2: one sentence in the third paragraph of the letter body; a name in the following paragraph |
| BD23 | Page 4: first 10 words of first sentence of final paragraph; and first five words of the following sentence |
| BD52 | Page 1: third paragraph of email sent at 12:48 and second bullet point in email sent at 10.33 |
| BD83 | Page 9: two names |
| BD84 | Page 7: name and PPSN |
| BD88 | Page 1: a first name, surname, PPS number and date of birth |
| BD140 | Page 10: two names in third paragraph |
| BD147 | Page 2: name |
Section 41(1)(a)
| Record No. | Exempt details |
| BD83 | Page 15: name |
| Page 17: two names | |
| BD84 | Page 1: name and PPSN |
| Page 3: name and address |
Deirdre McGoldrick, Senior Investigator