Case 98042

Names of bodies treated as charities for tax purposes - whether disclosure could reasonably be expected to prejudice or impair the enforcement of or compliance with tax law - section 23(1)(a)(ii) - information supplied in confidence - section 26(1)(a) - whether breach of equitable duty of confidence - section 26(1)(b) - whether disclosure would result in material financial loss - section 27(1)(b) - whether disclosure would prejudice contractual or other negotiations - section 27(1)(c) - consideration of public interest - personal information - application of section 28(1).

Case Summary

Facts

The requester sought access to the names of bodies which had received tax exemptions on the basis of their charitable status. The Revenue refused access on the basis that the information had been supplied to it in confidence. It also claimed that disclosure could undermine the confidence of taxpayers in the Revenue and prejudice the enforcement of or compliance with tax law. Following negotiations with the Office of the Information Commissioner, both the requester and the Revenue agreed that, subject to consultation with the charities, the names of those charities which did not object would be released to the requester. It was further agreed that the Commissioner's review would be confined to situations in which charities refused to give consent to release or gave their consent on a conditional basis.

Decision

The Commissioner annulled the decision of the Revenue and directed that the names of all but one of the charities which he considered during the course of his review be released to the requester. He directed that the exempt status of the remaining name be reviewed when the objectives of that particular charity are met.

The Commissioner did not find it reasonable to expect that disclosure of the names would cause such alarm among taxpayers as to prejudice or impair the enforcement, compliance with or administration of the tax code. He found that the requirements relating to confidentiality as set out in section 26(1)(a) had not been met in full. In the case of one charity which claimed that section 26(1)(b) applied he found that disclosure would not involve a breach of an equitable duty of confidence. In the case of another which claimed that release of the name would allow access to financial information whose disclosure could reasonably be expected to result in a material financial loss, the Commissioner found that the provisions of section 27(1)(b) did not apply. The Commissioner found that the name of another charity did not meet the criteria required to classify it as personal information and that the provisions of section 28(1) did not therefore apply. In the case of a number of charities which gave their conditional consent to release, the Commissioner found that there was nothing contained in any of the conditions which would place an insurmountable obstacle in the way of release.

Date of Decision: 08.07.1999

DECISION

Background:

On 20 May 1998, Mr John Burns of the Sunday Times Newspaper made an application to the Office of the Revenue Commissioners (the Revenue), under the Freedom of Information (FOI) Act, 1997, for "Any files/documentation giving the names of bodies or persons who have received tax exemptions on the basis of their charitable status". The Revenue replied to Mr Burns on 16 June 1998 stating that his request had been refused on the basis of claims for exemption under section 26(1)(a) and section 26(3) of the FOI Act. The decision letter stated that:"Under the Charter of Rights [of the Revenue Commissioners, a taxpayer is entitled to expect that personal and business information provided to Revenue will be treated in strict confidence. Accordingly, details in relation to any tax-exempted body (including a list of such bodies) would be treated as 'information received in confidence' and would not be disclosed to third parties. Having regard to the need to preserve confidentiality, it is not considered to be in the public interest to release such information".

Mr Burns sought an internal review of this decision and on 14 July 1998 the Revenue wrote to him indicating that the original decision to refuse had been upheld on internal review. The decision letter made the following points:

• Section 26(1) obliges the head of the organisation to refuse to grant a request where the information is given in confidence or where a duty of confidence exists. The tax status of any body or person must be regarded as confidential.
• Furthermore, as is required under section 26(1)(a), it is critical that taxpayers' confidence in the Revenue to treat their affairs in confidence be maintained so as not to inhibit the continued flow of information to Revenue.
• The public interest is considered to be best served by not disclosing the information. To do otherwise would call into question the Revenue's historic regard for the primacy of the confidential nature of its relationship with taxpayers.
• The public interest is also best served by the Revenue treating all categories of taxpayers equally. This entails not disclosing information about one group that would not be disclosed about another group.

Mr Burns applied to this office for a review of the Revenue decision on 16 July 1998 and, having considered the matter, I decided to grant his application and proceed with a review of that decision.

Following detailed negotiations with my officials the Revenue agreed, subject to consultation with the charities themselves, to release to the Sunday Times the names of those charities which did not object. Mr Burns agreed to allow me to suspend my consideration of this case pending the outcome of that consultation. It was further agreed between the parties that my review would be confined to situations in which charities refused to give consent to release.

On 27 November 1998, the Revenue consulted with 6,305 bodies who at that date, according to their records, held charitable tax exemption. Each body was notified that the Revenue had accepted that the information sought should now be made available under the Act and that it was proposed to release its name on a list of tax exempt charities to be supplied to a journalist who had requested such a list under the Act. Charities which were no longer in operation or who had an objection to the release of their name on the list were asked to notify the Charities Section by 18 December 1998. As a result of the consultation, some 522 bodies were removed from the list as defunct or amalgamated with other charities. A total of 20 charities indicated either that they objected to the release of the name or did not wish the name to be released and a further 107 indicated that they would not object to the release of the name on the understanding that certain conditions would be met. A list containing 5,656 names was released by the Revenue to Mr Burns on 15 January 1999. The Revenue did not release the names of the charities that gave their conditional consent to release and it was agreed that I would address this issue in the course of my decision on the matter.

In reviewing this case, I have examined the correspondence which passed between Mr Burns and the Revenue in relation to his FOI request together with submissions made by both parties. I have also considered the 127 replies received by the Revenue in response to their process of consultation together with further submissions made to this Office. During the course of my review, the trustees or representatives of the trustees of nine of the twenty charities which objected to the release of their name withdrew those objections following consultations with my staff. For the sake of clarity in this decision, I will refer to the remaining eleven objectors as charity numbers 1 to 11 inclusive and the charities which gave conditional consents as charity numbers 12 to 118 inclusive. At this point I should also state that these numbers do not in any way reflect the official Charity Number assigned to the bodies by the Revenue.

Submissions

From the Sunday Times

In his application to me for a review of the Revenue decision, Mr Burns indicated that the purpose of his original request was to get "...the most basic information about Irish charities and I am dismayed that this has been refused". He went on to state that Irish people are internationally renowned for their generosity to charities "....yet there is no proper regulation of the charitable sector in Ireland and very little accountability". He referred to the recommendations of the 1990 Report of the Committee on Fundraising Activities for Charitable and Other Purposes (also known as the Costello Report) in relation to the establishment of a regulatory body for charities and stated "These measures have never been implemented, so Irish charities continue to collect an estimated �250m each year in a largely unaccountable environment". Mr Burns rejected the Revenue's argument that it is not in the public interest to release the information he sought and argued that it is in the public interest "at the very least" to have "an effective list" of charities. In relation to the argument that the flow of information to the Revenue would be restricted if the names of the charities were released, Mr Burns stated "I am quite sure that bodies will continue to apply for the generous tax exemptions on offer whether or not their names are in the public domain".

From the Revenue

In a submission dated 18 August 1998, the Revenue argued that the request for information was properly refused under section 26(1)(a) of the FOI Act. It was argued that taxpayers' dealings with the Revenue are covered by a general umbrella of confidentiality and that the entitlement of each taxpayer to confidentiality is a "vitally important element which underpins voluntary compliance with tax obligations and the entire tax collection system". It was argued that the Revenue took the view that the maintenance of the confidentiality principle is not outweighed by any public interest in the disclosure of the information sought.

The Revenue stated that statutory provisions place confidentiality requirements on the Revenue, "albeit that these do not preclude the release of information under the Freedom of Information Act, 1997". It was argued that these provisions have created over the years an expectation of confidentiality in relation to tax affairs and that apart from statutory provisions, "de facto assurances about confidentiality are vital to effective collection and enforcement". It was stated that such assurances were given a formal status in the Revenue "Charter of Rights" which states that taxpayers are entitled "to expect that personal and business information provided by [the taxpayer] will be treated in strict confidence and used only for purposes allowed by law".

The Revenue went on to state that any person or body which approaches the Revenue seeking an exemption from taxation "does so in the knowledge and expectation that information it supplies will be treated in strict confidence". It was argued that the prospect that a taxpayer's ordinary dealings with the Revenue would be disclosed to third parties - in the present context, that their entitlement to an exemption from tax would become known to the general public - "would in Revenue's view tend to damage public confidence and adversely affect compliance with the tax laws". In this context, the Revenue specifically drew my attention to section 23(1)(a)(ii) of the FOI Act and stated its concern that "aweakening of the guarantee of confidentiality of taxpayer information would prejudice the making of tax returns or influence taxpayers to restrict information either in their returns to Revenue or in other areas". It was accepted that there are some limited statutory exceptions to the confidentiality rule but it was also argued that these "are of a different order to disclosure of ordinary taxpayer information to the general public and are subject to defined procedures and restrictions".

Turning to the issue of the registration of charities generally, the Revenue stated that apart from the narrow function of the consideration of applications from persons or trusts claiming exemption from tax on the basis that they are established for charitable purposes only, the Revenue has no wider regulatory function. It was argued that the Revenue does not "register" charities nor does it carry out the regulatory and monitoring role that was envisaged by the 1990 Report of the Committee on Fundraising Activities for Charitable and Other Purposes. It was further argued that, as charities are under no obligation to apply for tax exemption and that many charities have no taxable income, "Revenue records can by no means be regarded as a reliable source of information about extant fund-raisers".

Responses from charity numbers 1 to 11

The responses from these charities can be summarised as follows :

Charity number 1 The trust was set up from private funds for philanthropic purposes. "The family, then and now wish it to maintain its low profile, private status. Full audited accounts are filed on an annual basis with the Companies Registration Office....."

Charity number 2

• Disclosure of the name of the trust would disclose personal information. The consent of the person to whom the information relates is required under section 28 of the Freedom of Information Act.
• This is a private trust set up by an individual from the individual's own assets
• Donations are not solicited from the general public.

Charity number 3

The objection related to the possibility of the revelation of the nature of the business of the charity.

Charity number 4

"I am instructed to request that you do not circulate the information regarding the trust under the Freedom of Information Act because this is a private trust".

Charity numbers 5 and 6

"I object strongly to releasing any information to anyone including journalists".

Charity numbers 7, 10 and 11

"The availability of a name and file number will inevitably lead to the revealing of further information, whether by way of response to innuendo journalism or otherwise".

Charity number 8

"...we believe we should have the same rights as individual people whose financial details are kept secret and confidential, with the exception of criminal cases where people would be dodging tax, engaged in money laundering, etc."

Charity number 9

Release of the name at this stage could cause financial difficulties. Once the objectives of the charity are met "..we would have no objection to the release of the name of the charity. In fact we would encourage it".

The conditional consents to release (charity numbers 12 to 118 inclusive)

An examination of the conditional consents reveals that the same four conditions, with only minor variation, were specified in most cases, an additional condition was listed in two cases and different conditions were set out in three others. The majority of the letters of consent stated that the charity would have no objection to the release of its name -

".....on the understanding and condition that :

• The list will contain the names only (and not charity numbers or any other information) of the charities holding the tax exemption.
• The list will include all charities holding tax exemptions.
• This letter shall not permit or be deemed to permit or consent to access being given to any other records or information relating to our charity.
• We reserve our position in relation to your assessment of your legal obligations".

The following additional condition was listed in two of the letters of consent to release

• "In the event that a decision is made to disclose information additional to that at paragraph one above, we require sight of such additional information prior to its disclosure".

Charity number 12 granted its consent to the release of its name on the following condition:

"Provided it is made clear that this is a charity trust fund which distributes its income to charities and does not collect money from the general public, rather than a charity which collects money and distributes it to the needy. A journalist could easily misconstrue its purpose if it was published with a list of charities and may think it collected money from the public. I therefore object if it is categorised in this way".

Charity number 13 granted its consent to release on the condition that:

• "The list will contain the names only, and not charity numbers or other information.
• That this letter is not interpreted to mean that the [charity] would consent to access being given to any other records or information relating to their charity."

Charity number 14 granted its consent to release on the same conditions as charity number 13 and added the following condition :

• "The right of redress in relation to any consequences of the release of the information."

Findings

Most of the responses received by the Revenue expressed disquiet at the potential for the release of information which would reveal anything relating to the business affairs of the charity concerned. In view of the concerns which the respondents hold in relation to this matter, I consider it useful, at the outset, to outline the nature of the information requested, to comment upon the rights of the respondents to object and to set out the extent of the information which the release of the name might reveal about a charity.

Mr Burns' original application was for "Any files/documentation giving the names of bodies or persons who have received tax exemptions on the basis of their charitable status". His application sought to discover the names of the charities concerned and did not extend to any other matter. In most cases this information will not be very revealing. However, in the absence of a Register of Charities as suggested in the Costello report, it seems to me that an FOI request such as that made by Mr Burns to the Revenue was, at the time that he made his request, the only reasonable means by which an interested member of the public could obtain anything approaching a comprehensive list of Irish charities.

I should make it clear that not all the bodies on the list raise funds from the public. Some are essentially private trusts set up for philanthropic purposes. In the circumstances, it is understandable that some of these charities may feel that nothing about them, not even their names nor their very existence, should be revealed. In the event, I have found myself unable to uphold the objections of some of these charities. However, I think that I should make it clear that the charities concerned were perfectly entitled to avail of their rights under the FOI Act to object to release. It would therefore be improper to attribute any unworthy motive to a charity which objected to or set out conditions in relation to the release of its name on the basis of what may have been genuinely held concerns in relation to the potential for the release of information relating to its business affairs.

The release of the name of a charity on the Revenue's list reveals the fact the body named claims to be a charity and that it has applied to the Revenue for, and has been granted, the tax exemptions available to such bodies. The name may, in certain cases, also reveal some further information in relation to the general nature of the activities of the charity or its associations with institutions or individuals.

What the name does not reveal, however, is information in relation to the financial status or other business dealings of the charity. While such information may have been supplied to the Revenue, I am satisfied that the release of the name of the charity, of itself, will not reveal such information. I should also say here that the release of the names of those charities which hold tax exemptions cannot be regarded as representing a comprehensive register. The Revenue has argued that charities are under no obligation to apply for tax exemption and that many charities have no taxable income. Under these circumstances it seems to me that although the names of the charities held by the Revenue may form a substantial proportion of the total list of Irish charities, any list of those names cannot necessarily be regarded as exhaustive. In the absence of national registration requirements it seems to me that it is not possible, at this point in time, to determine the eventual content of a Register of Charities and that any list of names supplied by the Revenue must be considered in that context.

I now propose to address the specific concerns of the respondents and in doing so I will also address the original submissions put to me by the Revenue.

Charity numbers 1 to 11 inclusive

Section 23(1)(a)(ii) of the Act

In its submission to me of 18 August 1998, the Revenue argued that a taxpayer's dealings with the Revenue are covered by a general umbrella of confidentiality and that the entitlement of each taxpayer to confidentiality is a "vitally important element which underpins voluntary compliance with tax obligations and the entire tax collection system". The Revenue specifically drew my attention to section 23(1)(a)(ii) of the FOI Act and stated its concern that "a weakening of the guarantee of confidentiality of taxpayer information would prejudice the making of tax returns or influence taxpayers to restrict information either in their returns to Revenue or in other areas". The Revenue accepts that that there are some limited statutory exceptions to the confidentiality rule but argue that these "are of a different order to disclosure of ordinary taxpayer information to the general public and are subject to defined procedures and restrictions".

Section 23(1)(a)(ii) of the FOI of the FOI Act states:

"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 -

(ii) the enforcement of, compliance with or administration of any law,"

The question which arises in relation to the Revenue Commissioners' section 23(1)(a)(ii) argument is whether the release of the name of a charity which holds a tax exemption on the basis of its charitable status could, of itself, reasonably be expected to prejudice or impair the enforcement, administration or compliance with tax laws generally. While I accept that confidentiality is a feature of the tax system, it is clear that the entitlement to confidentiality is already subject to the requirements of law and therefore is not absolute. It seems to me that the argument proposed by the Revenue that confidentiality is of such importance to the enforcement of, compliance with and administration of the tax system is, in effect, an argument that there can never be a public interest in the release of information from that system. I do not accept that this is the case. In my view the disclosure of the information contained in the particular records sought in this case could not reasonably be expected to prejudice or impair the enforcement of, or compliance with or administration of the tax law. I do not accept that disclosure in this case implies that the confidentiality afforded by the Revenue to taxpayers has been so significantly weakened as to affect enforcement, compliance with or administration of the tax code. I note that the Revenue's own Charter of Rights promises to treat personal and business information provided by taxpayers in confidence. This guarantee echoes the protections for personal information in section 28 and commercially sensitive information in section 27 of the FOI Act. Given those protections I do not find it reasonable to expect that disclosure in the present case will cause such alarm among taxpayers in relation to preserving the confidentiality of their tax affairs as to prejudice or impair the enforcement, compliance with or administration of the tax code.

Section 26(1)(a) of the Act

The Revenue Commissioners and a number of the objectors argued that the information which they gave to the Commissioners was given in confidence and that section 26(1)(a) of the FOI Act therefore applies. That section states

26.�(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if �

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

For section 26 (1)(a) to apply it is necessary that four things be demonstrated, viz.

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

I can deal with the first two requirements together. I accept the argument put to me by the Revenue that any person or body which approaches the Revenue seeking an exemption from taxation has, in the past, done so ".....in the knowledge and expectation that information it supplies will be treated in strict confidence". I accept, therefore, that the first two requirements of section 26(1)(a) have been met. The next question which arises is whether the disclosure of the information, in this case the name of the charity, would be likely to prejudice the giving to the Revenue of further similar information in the future. Mr Burns has argued, reasonably in my view, that charitable bodies will continue to apply for the available tax exemptions whether or not their names are in the public domain. It is, of course, possible that under such circumstances certain charitable bodies would choose not to seek the exemptions on offer. However, as the purpose of making an application for a tax exemption is to gain a benefit for the body concerned in the form of reduced payments of taxation, it seems to me that the release of the name of such a person or body is unlikely to prevent further such applications being made to the Revenue. It also seems to me that the continued provision of such information to the Revenue is of greater importance to the applicant than to the Revenue and, under these circumstances, I am satisfied that neither the third or fourth requirements of section 26(1)(a) have been met in the case of the names of the charities which are the subject of this review.

In a submission to me dated 7 April 1999, charity number 8 indicated its belief that it should have the same rights of confidentiality in its financial affairs as individuals. It is of course possible that, depending on the circumstances of the case, an individual taxpayer might be in a position to argue a case successfully in relation to confidentiality in the matter of his or her dealings with the Revenue. However, as I have already found that the requirements of section 26(1)(a) of the Act have not been met in full in so far as it relates to the names of the charities which are the subject of this particular request, I must also find this to be the case in relation to charity number 8. Having considered the name of the charity and taking into account the fact that it is the name and nothing further that is sought by the requester, I am satisfied that the release of the name will not reveal any information relating to the financial affairs of charity number 8.

Section 26(1)(b) of the ActIn a submission to me dated 29 April 1999, charity number 1 argued that section 26(1)(b) applies. This section provides that a head shall refuse to grant a request for access to information if:

(b) 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.

No argument has been made to me that disclosure in this particular case would breach a duty imposed by an agreement or by statute and I am not aware of any relevant agreement or statute which might apply in this case. I have considered whether an equitable duty of confidence might exist in this case. In doing so, I have applied the tests set out in the leading case of Coco v. A.N.Clark (Engineers) Limited F.S.R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R.611) in which Megarry, J. stated as follows :

"Three elements are normally required if, apart from a contract, a case of breach of confidence is to succeed. First, the information itself.....must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it".

Before seeking to apply the three tests, it is first necessary to be clear as to what precisely would be disclosed if the request was granted in relation to charity number 1. It seems to me that two separate matters will be disclosed. The first is that a charity of this particular name actually exists. The second is that the Revenue accept that the charity qualifies for the charitable exemptions contained in the tax code. Nothing else will be revealed.

In relation to the existence of this charity, I discovered during the course of my review that the trustee of this charity is a limited company which files its annual return in the Companies Office. That return discloses that the company is a trustee of charity number 1. Thus the existence of charity number 1 is a matter of public record. In my view, the information that charity number 1 exists lacks the quality of confidence necessary in order to establish an equitable duty of confidence on the part of the Revenue in relation to it.

As I have already mentioned, disclosure in this case would also reveal that the charity had been granted certain exemptions from tax by the Revenue. It seems to me that, in fact, this is not information given by the charity to the Revenue. It is the outcome of the making of certain claims by the charity to the Revenue. In my view its disclosure could not involve a breach of an equitable duty of confidence and the tests which I have referred to are not relevant. Even if they were relevant, it seems to me that the outcome of applying the tests will be the same. A case could be made that this information has the necessary quality of confidence to meet the first requirement in establishing that there has been a breach of an equitable duty of confidence. However, I am unable to see what particular aspect of the circumstances in which it was 'imparted' to the Revenue imposes an obligation of confidence. Neither can I see that disclosure of the information will be to the detriment of the charity. When an entity has allowed its name to come into the public domain and that name identifies it as a charity, I find it impossible to see how disclosing that it has claimed charitable exemption for tax purposes can operate to its detriment.

My investigations in this case also revealed that annual returns filed by charity number 11 and on the public record in the Companies Office clearly state that the charity holds a tax exemption on the basis of its charitable status. The findings which I have outlined in relation to charity number 1 above therefore also apply in the case of charity number 11.

In the circumstances, I find that the exemption provided for in section 26(1)(b) does not apply.

Section 27(1)(b) of the Act

Charity number 1 also made the argument that the release of the name of the charity will allow access to financial information whose disclosure could reasonably be expected to result in a material financial loss to the company and claimed that the provisions of section 27(1)(b) of the FOI Act therefore applies. The basis of this argument is that, if the name of the charity is released, its Directors are likely to be besieged with extra requests for donations, that the costs of the company will inevitably increase and that if media attention and public intrusion become sufficiently difficult to deal with, the charity might have to be wound up.

Section 27 (1)(b) of the FOI Act requires a head to refuse to grant a request for information if the record contains:

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

It is of course possible that the release of the name might result in requests being made to the charity for donations. However, the argument that the number of such requests and the necessity to deal with media attention will be such as to lead to a potential winding up of the company is, in my view, an overstatement of the potential effects of release. The existence of this particular charity is already a matter of public record. I am satisfied that, having regard to the name of the trustee, even the most basic of searches in the Companies Office to discover the identity of charitable companies would lead to the revelation of the name of the trustee and the name of the charity. As I have already indicated, when an entity has allowed its name to come into the public domain and that name identifies it as a charity, I find it impossible to see how disclosing that it has claimed charitable exemption for tax purposes can operate to its detriment. Having considered this matter, I am satisfied that the release of the name of charity number 1 would not, of itself, result in the kind of harm envisaged in section 27(1)(b) and that the provisions of that section do not therefore apply.

Section 27(1)(c) of the Act

In its response to the Revenue charity number 9 indicated that the release of its name at this stage could cause financial difficulties. It also indicated that once the objective of the charity is met there would be no objection to the release of the name and that such release would be encouraged. This particular charity did not refer to any section of the FOI Act in support of its response. I must, of necessity, be circumspect in describing the particular circumstances of this charity which were put forward in support of its claim to exemption. However, I have examined the records provided to me by the Revenue and having considered both the nature and objectives of the charity, it seems to me that, for the present at least, the provisions of section 27(1)(c) apply in this particular case.

Section 27(1)(c) of the FOI Act requires a head to refuse to grant a request for information if the record contains:

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates

I have considered, in accordance with section 27(3) whether the public interest would, on balance, be better served by granting than by refusing to grant the request in respect of this charity. There is a clear public interest in requesters exercising their rights of access under the Act. I am not satisfied, however, that the public interest in the disclosure of the name of this particular charity is such that it outweighs the public interest in ensuring that the charity is allowed to meet its objectives. There is nothing contained on the Revenue records to indicate that the charity engages in public fund raising or that its name has entered the public domain in any other way. Mindful of the difficulties which the release of the name could present to the charity at this stage together with its indication that publication of the name would be encouraged once its objectives are met I accept that section 27(1)(c) applies in this case. I find that the name of charity number 9 should be withheld from the requester and its status as an exempt record should be reviewed by the Revenue when those objectives have been met.

Section 28(1) of the Act

In a submission to me dated 1 April 1999, charity number 2 made the argument that as the name incorporates the surname of the settlor, the disclosure of the name of the charity would result in the disclosure of personal information and that section 28 of the FOI Act therefore applies. Section 2 of the act defines "personal information" as information about an identifiable individual that -

(a) would, in the ordinary course of events, 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,

Section 28(1) states :

28-(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).

The first of the two criteria which information must meet in order to be defined as personal information is that it must be about an identifiable individual. The question which arises in the case of charity number 2 is whether the release of the name of that charity would lead to the release of information about an individual who will be readily identified from that surname. It is possible that a particular surname might be so rare that the revelation of the surname alone would disclose information in relation to a particular identifiable individual. In this case the requester has sought the name of the charity only and the name of charity number 2 incorporates a surname only. Having carefully considered this matter, I am satisfied that the name, in this instance, is in such common usage that the disclosure of the record would not, of itself, lead to the identification of the settlor. Under these circumstances I find that the name of charity number 2 does not meet the criteria required to classify it as personal information and the provisions of section 28(1) of the Act do not therefore apply.

Notwithstanding the response made to the Revenue by charity number 4 that it is a "private trust" I am satisfied, having regard to the fact that the name of the charity also incorporates the name of an individual, that it must also be considered in the context of section 28(1) of the Act. Having considered the fact that both the forename and surname of an individual form an integral part of the name of charity number 4, and taking those names into account, I am satisfied that the potential for the identification of that individual is significantly greater than that of the individual named in charity number 2. On the other hand, it is difficult to see how any personal information about that individual would be disclosed through releasing the name of the charity.

In a submission to me dated 24 June 1999, charity number 4 stated that it was unique in that donations were received from people who were personally known to the named individual and who had indicated that they were interested in doing something in that individual's name to help others. Following discussions with my staff, charity number 4 indicated that its primary concern was to protect the privacy of the individuals who had contributed to the trust. The charity has however accepted that the requester has sought access to the names of the charities only and not to any other information. It has agreed to the release of its name on the basis that no improper motives are attributed to its initial objections to release. I have already commented on the rights of the charities to object to the release of their name under the FOI Act and those comments apply in equal measure to charity number 4. Under these circumstances I am satisfied that having regard to section 28(2)(b), the name of charity number 4 can now be released to the requester.

Charity numbers 3, 5 and 6 The response of charity number 3 to the Revenue related to the possibility of the nature of the business of the charity being disclosed and the responses of charity numbers 5 and 6 stated "I object strongly to releasing any information to anyone, including journalists". No specific FOI grounds were cited in support of these objections.

I have carefully considered whether any of the exemptions dealt with earlier in this decision could apply to the names of any of these three charities. I have already indicated that the provisions of section 26(1)(a) do not apply to the names of the charities which are the subject of this review. No arguments have been made in these three cases that the provisions of section 26(1)(b) apply. In particular, I note that none of the objectors claimed that it would suffer any detriment specifically as a result of disclosing the existence of the charity or as a result of disclosing that it had been accorded tax exemption by the Revenue. Indeed, it seems to me that there is nothing inherent in the names of the charities or in the Revenue records before me which suggests that such detriment is possible. In the circumstances, I find that a case has not been established for exemption under section 26(1)(b). I am satisfied that the release of the names alone will not result in a material loss or gain as envisaged by the provisions of section 27(1)(b). No evidence has been presented to me which would suggest that the release of the names in these cases would prejudice the conduct or outcome of contractual or other negotiations as envisaged in section 27(1)(c) and as none of the three names incorporate the name of any individual, the provisions of section 28 are not relevant. I am further satisfied that there is nothing in the names of these particular charities which, if released, will result in the disclosure of any matter of a financial nature or which would compromise their activities in any way.

Under these circumstances I find that the names of charity numbers 3, 5 and 6 are not exempt.

Charity numbers 7 and 10 In their responses to the Revenue, charity numbers 7 and 10 expressed the view that the official number assigned to the charities "is not a matter for public consumption". The responses of these charities referred primarily to the release of the official number and made no specific comments in relation to the release of the names. In so far as any comment was made in relation to the release of the name, the concern was expressed that the linking of the name to the official number would, as a matter of inevitability, lead to the revelation of further information. While I acknowledge the concerns of these charities in relation to the possible effects of such a linkage, I must point out that the requester has sought only the name of the charities and nothing more. As the charities have not made any comment in relation to the release of their names in the absence of any other information, I do not consider it necessary to comment further on the responses from charity numbers 7 and 10 and find that the names of these charities are not exempt.

The conditional consents to release (charity numbers 12 to 118 inclusive)

During the course of my review in this case, it came to the attention of my officials that the Revenue Commissioners' consultation letter of 27 November 1998 had been the subject of discussion within the Conference of Religious of Ireland (CORI) and that the Finance Commission of CORI had drafted a response to the Revenue Commissioners' letter which was forwarded to various religious charities for use by them as a basis for drafting their own replies if they wished. In the event, the majority of the conditional responses simply repeated the draft response without change. CORI has emphasised the fact that its Finance Commission does not in any way speak on behalf of any of the religious charities nor can it bind them in any way. Subject to that being clearly understood it has, however, indicated that the draft response was made on the basis of the statement made by the Revenue in its letter that it had accepted that the information should be made available to the requester and that the responses based on its draft are letters of consent to release rather than objections.

My officials raised a concern with CORI that the condition that the list would include all charities holding tax exemptions could be interpreted to mean that consent was given only on the basis that the name of every charity holding a tax exemption was released and, on the basis of such interpretation, that condition might be impossible to fulfil as it could happen that some charities might be able to establish a case for exemption under the FOI Act. CORI has however clarified this point by stating that the condition was in its view:

".......simply an expression of the expectation of the charities concerned that there will be equal treatment in this context for all charities. CORI was aware that there was an understandable concern that certain types of charities should not be unfairly singled out. If it is clear that this is not the case and that equal treatment is being applied to all charities (apart, perhaps, from certain special cases which the Information Commissioner deems it not appropriate to release for the sake of the common good), I have no doubt that the relevant charities will consider that point also to be effectively met".

As charity numbers 12 to 118 have already advised the Revenue that they have no objection to the release of their name, I find that it is not strictly necessary for me to rule in relation to the release of those particular names to the requester. Having considered this matter very carefully, I am satisfied that there is nothing which will be released to the requester on foot of this particular request which need be a cause of concern to any charity which has given its conditional consent to the release of its name. The requester has sought only the names of the charities and this is the only information which falls within the scope of the request. On this basis any future request made under the FOI Act, 1997 must be the subject of separate consideration by the Revenue. It seems to me that none of the conditions laid down in any of the conditional responses places an insurmountable obstacle in the way of the release of the names of those charities and I am satisfied that those names should now be released. In the case of charity number 12, which expressed a particular concern, I am satisfied that the release of a statement in addition to the name to the effect that it is a charity which distributes its income to other charities and does not collect money from the general public, will be sufficient to meet its requirements.

Decision

Having reviewed the decision of the Revenue Commissioners to refuse to release the names of 127 charities to the requester, I am satisfied that the names of charity numbers 1 to 8 inclusive together with those of 10 and 11 should now be released to the requester. Having considered the name and objectives of charity number 9 I am satisfied that the name of that particular charity should be withheld and its exempt status reviewed when its objectives have been met.

In the case of charity numbers 12 to 118 inclusive, the charities have already given their consent to the release of their names. I am satisfied that there is nothing contained in any of the conditions attached to those consents which would place an insurmountable obstacle in the way of release and find that those names should now be released. In the case of charity number 12, I am satisfied that the release of a statement which expresses its particular concerns will be sufficient to meet its requirements.

I therefore annul the decision of the Revenue Commissioners of 14 July 1998 and hereby direct that the names of charity numbers 1 to 8 inclusive and 10 to 118 inclusive now be released. I further direct that the name of charity number 9 be withheld and its exempt status reviewed when the objectives of that particular charity have been met.

Information Commissioner

08 July 1999