Cinneadh
Mr. X & The Office of the Revenue Commissioners (Revenue)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156598-F0Z2Z0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156598-F0Z2Z0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Revenue was justified in refusing access, under section 15(1)(a) of the FOI Act, to a recording of a phone call the applicant made to its internal LPT Helpline on 22 March 2024 on the basis that the record sought no longer exists
13 November 2025
This case has its origins in a previously annulled and remitted case which came before this Office in 2024. On 30 May 2024, the applicant submitted a request to Revenue for a copy of the recording of his phone call to Revenue’s Local Property Tax (LPT) Helpline on 22 March 2024 in relation to a specified property ID. On 17 December 2024, I annulled Revenue’s deemed refusal of the request on the ground that it did not meet the requirements of section 12(1)(b) of the FOI Act and I directed Revenue to consider the request afresh (Case OIC-150867 refers).
On 17 January 2025, Revenue issued its fresh decision to the applicant, in which it refused the request under section 15(1)(a) of the FOI Act. It said the relevant call recording could not be located as all call recordings for the day in question had been deleted in line with its Record Retention policy which, it said, provides that call recordings can be deleted after 6-12 months. It provided the applicant with a link to its Record Retention policy.
On 29 January 2025, the applicant sought an internal review of Revenue’s decision. On 12 February 2025, Revenue issued its internal review decision, in which it affirmed its refusal of the request under section 15(1)(a) of the Act. On 14 February 2025, the applicant applied to this Office for a review of Revenue’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of Revenue’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that the record sought no longer exists. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 both Revenue and the applicant during the course of the review. 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 refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for a recording of a phone call he made to its internal LPT Helpline on 22 March 2024.
In his submissions of 10 March 2025, the applicant raised a number of concerns pertaining to the review we conducted in Case OIC-150867. He also alleged that my decision letter of 18 December 2024 in that case, which was published on our website, contained various defamatory statements about him. He asked that an apology and correction be published.
My decision in Case OIC-150867 was published pursuant to section 46 of the FOI Act which requires that all decisions issued by this Office are published. Moreover, section 22(14) of the Act provides that decisions made by this Office following a review are binding on the parties concerned, subject only to an appeal to the High Court on a point of law from the decision, pursuant to section 24(1) of the Act. Given their binding nature, we do not generally comment upon decisions once they have issued. Therefore, while I do not intend to address each of the concerns raised and allegations made, I will say that I am quite satisfied that our review in Case OIC-150867 was conducted properly and fairly and that my decision of 18 December 2024 contains no defamatory statements as alleged.
Section 15(1)(a)
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. My 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.
Applicant Submissions of 10 March 2025 and 13 March 2025
In his submissions, the applicant said that Revenue destroyed the call recording sought and that this may constitute an offence under section 52 of the FOI Act. On the matter of the legality of the destruction, he referenced a decision of the Data Protection Commissioner in relation to the Department of Health, a report entitled “Data Protection in the office of the Revenue Commissioners ” published by the Data Protection Commissioner in or around 2010, the National Archives’ “Records Retention Schedule ”, the GDPR, and the Taxes Consolidation Act 1997. He also referenced Revenue’s Record Retention Schedule which states that “a record may not be destroyed if any… open records request, administrative review… is initiated before the expiration of the retention period .” He further referenced the fact that the Retention Schedule states that Local Property Tax (LPT) case files should be retained for 10 years. He noted that Revenue’s own 12-month retention schedule had not, at that stage expired, in relation to the record at issue. He further suggested that this Office should seek a copy of the destruction certificate for what he described as “millions of recordings destroyed since 2018 ”.
Revenue Submissions of 19 March 2025 and 9 April 2025
In its submissions, Revenue said the call recording in question no longer exists as it was automatically deleted in line with its record retention policy. It said its record retention policy and schedule was first published in early 2018 in advance of the effective date of the General Data Protection Regulation (GDPR) (May 2018). It said a working group was established to agree a policy, identify all record types and the retention period for each record type. It said it was considered that it was likely that any issue to be resolved by listening to the call recording would come to light reasonably quickly after the call took place. It said, however, that to be cautious a period of 6 months was selected. It said regard was also had to the data protection principles of data minimisation, proportionality and storage limitation to meet the requirements of Article 4 of the GDPR.
On the matter of searches undertaken, Revenue said that it conducted a search on its internal call recording system, and that it also instructed its External Service Provider (ESP) to conduct a search on its call recording system. It said that when the search was conducted, it was found that all calls from 22 March 2024 were deleted from both systems, in line with the 6-month record retention period for call recordings as set out in Revenue’s record retention schedule. It said that other than the record retention schedule, there is no specific documentation containing instructions/policy on the destruction of call recordings. It said its Record Management Unit is awaiting guidance from the National Archives in relation to the digital preservation of records in the Civil Service. It said ESP records are subject to the same retention period and the same procedures apply.
Revenue said a search was also conducted on the applicant’s Revenue file. It said that as expected, a copy of the recording of the phone call was not found but a record on his file was located that relates to the call in question. It said that on the day the call was received, the case worker entered a note of the call on the applicant’s system-based Revenue record. It said that record has already been released to the applicant on foot of an earlier FOI request.
Revenue acknowledged that a recording of the relevant call would have existed on both the Revenue and ESP systems until 22 September 2024, at which point, it said, the recording was automatically deleted along with all other calls made to the LPT Helpline on 22 March 2024.
Revenue further acknowledged that its retention policy provides that “A record may not be destroyed if any litigation, claim, negotiation, audit, open records request, administrative review, or other action involving the record is initiated before the expiration of the retention period ." It said it acknowledges that an error of omission occurred in not taking steps to ensure that all the records for the day in question were retained when the FOI request was received. It said it was expected that the additional information that was required to locate and identify the record in question would be provided by the requester within a reasonable timeframe. It said that when it became apparent that the additional information was not forthcoming, steps should have been taken to retain all the call recordings for the day in question. It said this omission was an oversight caused by human error and was not done deliberately. It said that before the current issue arose, Revenue did not have a separate policy for record retention in the case of records which are the subject of an FOI request or review by the Information Commissioner. It said that when this matter came to light, it issued new guidance to ensure that this situation would not recur. It said the new guidance has been communicated to all FOI staff across the organisation. It said specific training on this matter has been provided to the record holders and FOI decision makers in Personal Division and Local Property Tax Branch where this situation occurred. It said a process is now in place to ensure that requests for records that are nearing the end of their retention period will be retained until the FOI request is finalised.
In response to a query by this Office as to whether Revenue holds a disposal certificate regarding the deletion of the call recordings on 22 September 2024 pursuant to its retention policy which provides that “In accordance with Section 7 of the National Archives Act, no class of Revenue records can be destroyed without first obtaining a disposal authorisation from the Director of the National Archives ”, Revenue said it does not have a disposal certificate or authorisation certificate in relation to the deletion of the records in question. It said it is awaiting guidance from the National Archives in relation to the digital preservation of records in the Civil Service. It said call recordings are digital records and staff typically put a summary of the call on the customers record on Revenue's system (as happened in this case). It said data contained in call recordings can be highly sensitive personal data and regard is had to the Data Protection principles of data minimisation and storage limitation.
Applicant Submissions of 30 April 2025
The Investigating Officer notified the applicant of the details of Revenue’s submissions. In his responding submissions of 30 April 2025, among other things, the applicant argued that Revenue had not provided any material evidence of the date on which the recording was destroyed or of the date on which any search was conducted. He said Revenue did not indicate if it had asked staff in Corporate Services Division and Personal Division whether any of them had requested a copy of the recording from ICT&L Division, in which case it would have been delivered to them by email. He provided further comments as to the legality of the destruction of the record, including why he believes the destruction to constitute an offence under section 52 of the FOI Act.
Revenue Submissions of 20 June 2025
In response to a request by this Office for clarification as to whether call recordings which relate to LPT issues, as was the circumstance in this case, would be considered as records forming part of the LPT case file for the purposes of record retention. Revenue said all call recordings to its Helpdesk are classed together and are retained for a period of 6 months. It said call recordings are not exported to relevant case files, and that call recordings are exclusively held digitally in its call recording systems, and not held elsewhere on any other Revenue systems, databases, or files. It said the staff member who takes the call does not hold a copy of the call recording, and that call recordings are not exported off the system. It again said that a note of the call is often taken, and this note is placed on the relevant LPT case file, as was the case in this situation. It said call recordings are not exported and are held solely on its dedicated ESP and Revenue systems for Helpdesk call recordings. It said that as such, call recordings are not classed in the same category of records as LPT case file records and are therefore subject to different retention periods i.e. 6 months and 10 years, respectively.
My analysis
I wish to state clearly at the outset of my analysis that it is not the role of this Office to examine whether Revenue’s destruction of the call recording sought was illegal. I will address section 52 of the Act separately below. The sole question I must consider in this case is whether Revenue was justified in refusing the request under section 15(1)(a) on the ground that the record sought no longer exists. Revenue has confirmed that the record was destroyed in line with its documented Records Retention Schedule. I have no reason to doubt Revenue’s statement. Indeed, it seems to me that even the applicant accepts that the record no longer exists, given the inclusion in his submissions of his detailed views on the legality of the destruction of the record. I also accept Revenue’s evidence that it does not hold a copy of the record in any other location. Having regard to the details of Revenue’s submissions, I find that it was justified in refusing access, under section 15(1)(a) of the FOI Act, to the recording of the applicant’s phone call to its LPT Helpline on 22 March 2024 regarding a specific LPT Property ID, on the ground that the record sought no longer exists.
It is, however, very disappointing that Revenue failed to retain a copy of the call recordings for the date in question in light of the fact that the call recording at issue was the subject of an FOI request and a related review by this Office at the time of its destruction and in light also of the fact that its own Record Retention Schedule provides that such records must not be destroyed. Nevertheless, I accept Revenue’s explanation that the omission was an oversight caused by human error and was not done deliberately. I am also pleased to note that it has since issued new guidance with a view to ensuring that this situation will not happen again and that a process is now in place to ensure that requests for records that are nearing the end of their retention period will be retained until the FOI request is finalised.
Section 52
For the sake of completeness, I wish to address the applicant’s submission that the destruction of the record may constitute an offence under section 52 of the FOI Act. Section 52 provides as follows:
“Where an FOI request has been made in respect of a record, a person who without lawful excuse and with intention to deceive destroys or materially alters a record shall be guilty of an offence and be liable on summary conviction to a class B fine .”
It is important to note that for section 52 to apply, the destruction of the record must have been without lawful excuse and with intention to deceive. This is undoubtedly a high threshold. The Act contains no further details how such matters should be pursued. The question of whether an offence has taken place is a matter for investigation by An Garda Síochána (AGS) and ultimately it is a matter for the Director of Public Prosecutions as to whether or not to prosecute an alleged breach. This Office has no role in deciding whether an offence has, in fact, occurred. Nevertheless, it is open to anyone to make a complaint to AGS re a suspected offence, including a requester. Regardless, having considered Revenue’s submissions, I have no reason to suspect that there has been a wilful destruction of the record sought in this case. If the applicant has such suspicions, it is open to him to take whatever further steps he deems appropriate.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue’s decision to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for a copy of the recording of his phone call to Revenue’s LPT Helpline on 22 March 2024 in relation to a specified property ID on the ground that the record sought no longer exists.
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.
Stephen Rafferty
Senior Investigator