Case 99017, 99018, 99019, 99020, 99038, 99039 and 99040. Records relating to the requesters' tax affairs and section 811 of the Taxes Consolidation Act (TCA) 1997 - whether access to pre-commencement records is necessary or expedient to understand post-commencement records - section 6 - whether records relate to personal information - section 2 - legal professional privilege - section 22(1)(a) - whether access could reasonably be expected to prejudice or impair the fairness of civil proceedings in a court - section 23(1)(a)(iv).

Case Summary

Facts

Each of the requesters had been involved in a series of transactions which had been treated by Revenue under section 811 of the TCA 1997 as tax avoidance transactions. The section provides that the Revenue Commissioners (or a nominated officer) can form an opinion that a transaction is a tax avoidance transaction and give notice to that effect to each person affected by the opinion. A person receiving a notice has 30 days within which to appeal the opinion of the Revenue to the Appeal Commissioners (and, subsequently, to the Circuit Court). In the case of each of these requesters a notice was issued and the Revenue's opinion was appealed to the Appeal Commissioners. The requesters sought access to the correspondence relating to each of the individuals, the companies and section 811. The Revenue decided to grant access to a number of records, grant partial access to others and to withhold others invoking the exemptions under section 22(1)(a), section 23(1)(a)(iv) and section 6.

Decision

The Commissioner accepted that the records which were considered by him were all, with one exception, created before the commencement of the Act. He decided that access was not necessary or expedient in order to understand records created post-commencement and, in the case of the records relating to the companies, that the records could not relate to "personal information" about them as a company cannot have personal information within the terms of the definition in section 2. He decided that the information about the individual requesters, their tax affairs and specifically, the information about their involvement in the series of transactions which gave rise to the forming of the opinions under section 811 of the TCA 1997, was personal information about each of the requesters.

The Commissioner found that the Revenue was entitled to rely on section 23(1)(a)(iv) to refuse access to some of these records as he was satisfied that it could reasonably be expected that release in this case could prejudice or impair the fairness of any proceedings before the Circuit Court. He was also satisfied that the level of likelihood of the coming into existence of such proceedings was sufficient for section 23(1)(a)(iv) to apply.

The Commissioner was satisfied that section 22(1)(a) applied to some of these records as the dominant purpose in creating them was preparation for the threatened appeal to the Appeal Commissioners.

Date of Decision: 17.12.1999

DECISION

Background:

On 14 October 1998, Donovan, Kenny & Co made a request under the Freedom of Information Act, 1997 (FOI Act) to the Office of the Revenue Commissioners (the Revenue) on behalf of Mr ABM, Mr ABN, Mr ABO and ABP Limited for access to correspondence relating to each of the individuals, the company and section 811 of the Taxes Consolidation Act (TCA) 1997.

The Revenue notified Donovan, Kenny & Co of its decision on each of these requests on 25 November 1998. The requesters were notified that records were held in relation to this request in the Office of the Chief Inspector of Taxes, Direct Taxes International & Administration (DTIA) and the Office of the Revenue Solicitor. Access was granted to 16 records in the case of the request on behalf of the company and 17 records in relation to each of the individual requesters. Access was granted in part to three other records under section 13 of the Act. Access was refused to all the records held by DTIA and the Office of the Revenue Solicitor and the remainder of the records held by the Office of the Chief Inspector of Taxes. The Revenue relied on the following exemptions in refusing access: section 22(1)(a) on the grounds that some of the records attracted legal professional privilege; section 21(1)(a) on the basis that disclosure would prejudice the effectiveness of tests, examinations, investigations or audits conducted by or on behalf of the public body; section 23(1)(a)(ii) on the basis that disclosure could reasonably be expected to prejudice or impair compliance with or administration of any law; section 23(1)(a)(iv) on the basis that disclosure could reasonably be expected to impair the fairness of civil proceedings in a court or other tribunal; section 28(1) on the grounds that some of the records concerned related to personal information about a person other than the requester in each case and section 6 because certain records were created prior to the commencement of the Act i.e. prior to 21 April 1998.

The requesters sought an internal review of this decision and the decision was upheld on internal review.

On 23 October 1998, Myles C Ronan & Associates made a request under the FOI Act to the Revenue on behalf of ABQ Company Limited, Mr ABR and Mr ABS for a copy of the files held by the Office of the Chief Inspector of Taxes and/or Cork Tax District and/or the Revenue Commissioners in relation to correspondence relating to the company and each individual and section 811 of the TCA 1997.

The Revenue notified Myles C Ronan & Associates of the decision on each of these requests on 3 December 1998. The requesters were notified that records were held in relation to this request in the Office of the Chief Inspector of Taxes and Direct Taxes International & Administration (DTIA). Access was granted to 19 records in the case of the request on behalf of the company and 18 records in relation to each of the individual requesters. Access was granted in part to two other records under section 13 of the Act. Access was refused to all the records held by DTIA and the remainder of the records held by the Office of the Chief Inspector of Taxes. In refusing access, the Revenue relied on the same exemptions as it had relied on in dealing with the requests made by Donovan, Kenny & Co.

The requesters sought an internal review of this decision. The decision in relation to the request on behalf of the company was upheld and the decisions in relation to the two individual requesters were varied with the release of part of one further record where it related to the individual.

On 15 January 1999, Donovan, Kenny & Co applied to me on behalf of their clients for a review of the Revenue decisions. On 28 January 1999, Myles C Ronan & Associates applied to me on behalf of their clients for a review of the Revenue decisions.

I accepted these applications for review.

The background to these requests is that each of the requesters had been involved in a series of transactions which had been treated by the Revenue under section 811 of the TCA 1997 as tax avoidance transactions. Section 811 of the TCA 1997 is a general anti-avoidance measure intended to defeat the effects of transactions which have little or no commercial reality but are intended primarily to avoid or reduce a tax charge or to artificially create a tax deduction or tax refund. The section provides that the Revenue Commissioners (or a nominated officer) can form an opinion that a transaction is a tax avoidance transaction and give notice to that effect to each person affected by the opinion. The notice describes the transaction, the tax which is intended to be avoided or the refund which is intended to be generated by the transaction and the steps which the Revenue propose to take in order to ensure that the tax is not avoided or refunded. A person receiving a notice has 30 days within which to appeal the opinion of the Revenue to the Appeal Commissioners. In the case of each of these requesters a notice was issued and the Revenue's opinion was appealed to the Appeal Commissioners.

Having accepted the applications for review, I received notification from each of the individual requesters that Donovan Kenny & Co and Myles C Ronan & Associates were authorised to act on their behalf. I invited submissions from all the relevant parties to the reviews and requested the relevant records from the Revenue.

I received a submission from Donovan Kenny & Co on 10 February 1999 and from C M O'Sullivan, Solicitors on behalf of Donovan Kenny & Co on 26 March 1999. Myles C Ronan & Associates responded on behalf of their clients on 24 February 1999 and again on 22 March 1999. The Revenue responded with their submission on 19 February 1999.

In response to queries raised in the submissions received and in order to clarify the position for the requesters, I outlined my preliminary views to C M O'Sullivan, Solicitors in a letter dated 12 April 1999 following a telephone conversation with my Office, and to Myles C Ronan & Associates by letter dated 13 April 1999.

I noted concerns expressed on behalf of the requesters about the apparent inadequacy of the letters issued by the Revenue. Their main complaint was that these letters did not detail the material issues which were taken into consideration by the Revenue in reaching their decisions. The requesters asked me to invoke my powers under sections 35 and 36 of the Act. Section 35 of the Act provides that where an application for a review is made to me and the reasons for the decision as given by a public body are considered by me to be inadequate, I can direct the head of the public body to furnish to the requester and to me, a statement containing any further information in relation to these matters that is in the power or control of the head. Section 36 requires me to keep the operation of the Act under review and empowers me to carry out an investigation at any time into the practices of any public body for the purposes of compliance with the Act generally or any particular provisions of the Act. I declined to invoke these provisions and proposed instead to set out for the requesters my understanding of the Revenue's decision, based on a perusal of their FOI decision making files. I took this course of action because it seemed to me that this might be the most expeditious way of dealing with the reviews in hand. However, no assumptions should be made about the future use by me of the powers granted to me under section 35. The Act requires public bodies to explain clearly the reasons for their decisions on FOI requests. Where the failure of a public body to do so gives rise to applications for reviews of decisions of that public body, then the application of section 35 may be the most appropriate course of action in relation to such cases.

In relation to the present cases, I explained to the requesters that I had examined the records provided to me by the Revenue. It was clear that there were three types of record which came within the scope of all the requests:

• audit files of the companies/individuals mentioned in the Revenue's opinions issued by virtue of section 811,
• correspondence with the Revenue Solicitor and
• >records generated by the Anti-avoidance Unit in the Office of the Chief Inspector of Taxes.

I indicated as a preliminary view that the Revenue did not appear to have considered the audit files as part of the request but that I considered that these records were, indeed, within its scope. I asked the requesters to confirm that they required access to these records and also to indicate if they required access to material dealing with other parties to the transactions. I pointed out that there was some correspondence with the Revenue Solicitor which was created prior to the commencement of the Act in respect of which the Revenue claimed legal professional privilege. The documentation held in the Anti-avoidance Unit showed, in general, the work undertaken by the Revenue prior to forming their opinion under section 811. Essentially, the Revenue's argument was that to release such documentation could reasonably be expected to prejudice or impair the administration of income tax law and the fairness of proceedings of a tribunal (being the Appeals Commissioners) - see section 23(1)(a)(ii) and (iv) of the FOI Act. I gave as my preliminary view that such a conclusion could only be warranted to the extent that the documents disclosed possible arguments or possible lines of cross-examination which the Revenue might want to take on appeal. On this point, I noted that there is no corresponding onus on the appellant to disclose such material. I raised the possibility of a settlement on the basis that documents of the kind mentioned would continue to be withheld.

C M O'Sullivan responded on 23 April 1999 and indicated that they required access to the audit files. They did not accept that the exemptions claimed by the Revenue applied. They provided me with detailed submissions to support their position on this. I received a response on 6 May 1999 from P J O'Driscoll & Sons, Solicitors on behalf of Myles C Ronan & Associates. It was indicated on behalf of their clients that they required access to the audit files and did not accept that the exemptions claimed by the Revenue applied.

Officials from my Office met with the Revenue on 6 May 1999 to examine all the records relevant to the review. By letter dated 30 June 1999 I gave my preliminary views to the Revenue in relation to the case.

I explained that following the meeting on 6 May 1999, my Office had contacted the requesters with a view to clarifying the terms of their request and that in all of the cases, the requesters had indicated that they required access to the records held on the audit files. I put it to the Revenue that I understood that it was normal practice to make available to tax payers, on request, any material held by the Revenue which had been submitted by the taxpayers themselves and that I assumed that this practice would generally extend to most material which was acquired in the context of the audit. I asked the Revenue to confirm that there was no objection in principle to the release of this information and suggested, as an alternative to photocopying all of this material, that a list of the documentation held on the audit files be made available to the requesters with an offer to copy any of the records if requested.

I pointed out that my preliminary view was that, if the matter could not be disposed of as outlined, the records gathered by the Revenue in the course of the audits and held on the audit files came within the terms of the request under the FOI Act. I asked the Revenue to explain, in the event that it was not considered possible to disclose a listing of the documentation held on the audit files, the basis for this conclusion and the exemptions upon which it was relying.

I should like to make it clear that the view expressed above is based on an examination of the particular records in these cases. It should not be taken as a definitive statement that all material gathered by Revenue in the course of an audit or investigation and most particularly, confidential information collected from third parties - has to be disclosed to a requester.

I pointed out, following an examination of the records held by the Anti-avoidance Unit in relation to these cases, that these records contained little information which was not already included in the opinions issued. I considered that it was difficult, therefore, to accept that disclosure of these records could have any impact on the ability of the Revenue to conduct its case before the Appeals Commissioner. I invited the Revenue to make a further submission to me on these points.

The Revenue did not respond formally to this letter, but requested a second meeting with my officials in order to address the issues raised therein. This was held on 15 July 1999. At that meeting the Revenue agreed to the release of the bulk of the material which related to the request including the material gathered in the course of the audit, with the exception of those records identified as attracting legal professional privilege and those records which contained arguments upon which the Revenue intended to rely in any appeal proceedings and the documentation supporting these arguments, (section 23(1)(a)(iv)). A number of records included material unrelated to the request and the Revenue agreed to their release with the unrelated material deleted as provided for by section 13. Subsequent to this meeting, the hearing by the Appeals Commissioners was held and following this the Revenue agreed to the release of some further records.

The records which then remained to be considered were as follows:

Records in respect of which exemption under section 23(1)(a)(iv) is claimed

1. Undated memorandum from Paul Walsh to Padraig C O'Laoghaire, Principal Inspector of Taxes - paragraph 5.4 and supporting documentation withheld.
2. Copy of memorandum at 1 above dated 31 July 1997 - paragraph 5.4.
3. Part of the final sentence of the third paragraph of the memorandum dated 4 January 1996 from Keith Kemery, Cork Audit District to Paul Walsh, Anti-avoidance Unit.

Records in respect of which exemption under section 22(1)(a) is claimed.

1. Memorandum dated 10 December 1997 from P C O'Laoghaire, Chairman Appeals Committee to Michael Howard Direct Taxes International and Administration.
2. Memorandum dated 16 February 1998 from Michael Howard to Mr Reid.
3. Memorandum dated 17 February 1998 signed D B Quigley, Revenue Commissioner.
4. Memorandum dated 17 February 1998 from John Reid, Direct Taxes Administration to D B Quigley, Revenue Commissioner.
5. Memoranda dated 18 February 1998 from Sheila Barry, Direct Taxes Administration to P C O'Laoghaire, Chairman Appeals Committee, and copy to Inspector of Taxes, Cork Audit District and to Frances Cooke, Revenue Solicitor.
6. Memorandum dated 18 February 1998 from Sheila Barry to Paul Walsh.
7. Memorandum dated 23 February 1998 from Keith Kemery to Sheila Barry.
8. Further copies of 6 and 7 above.
9. E-mail between Etain Croasdell, Revenue Solicitor's Office and Paul Walsh dated 23 February 1998.
10. Memorandum from Paul Walsh to Etain Croasdell dated 10 March 1998.
11. Memorandum from Paul Walsh to Etain Croasdell dated 18 March 1998.
12. Memorandum from Etain Croasdell to Paul Walsh dated 6 July 1998.

My officials contacted the requesters and explored the possibility of a settlement at that stage in the review. It was not possible to reach agreement with the requesters as to the basis of a settlement. A further submission was made to me by C M O'Sullivan, Solicitors dated 7 September 1999, in which it was stated that this submission was made jointly in consultation with P J O'Driscoll & Sons, Solicitors.

At this point I should make it clear that the outstanding records are common to all the requests. The representatives of all the requesters have indicated that they do not require that a full set of the records involved be provided to each requester on an individual basis but one set to each grouping of requesters would suffice. Further, a joint submission was received from the requesters in response to the settlement proposals. I consider it appropriate, therefore, to deal with all the reviews together in the one decision. I propose to incorporate the main points in each submission as they relate to these records and, where a similar point is argued in more than one submission, to provide a summary of the arguments.

Submissions

The Requesters

Section 23(1)(a)(iv)

In relation to the application of the exemption contained in section 23(1)(a)(iv), both Myles C Ronan & Associates in their submission dated 18 March 1999, and C M O'Sullivan, Solicitors, in their submission dated 25 March 1999, refer to the standard of proof required to satisfy the exemption and argue that this standard was not met by the Revenue in this instance. The requesters argue that "[I]n respect of the standard of proof required, it is submitted that the words contained in section 23(1) are similar to those considered by Woodward J. in the Australian case ofNews Corporation Limited. v. National Companies and Securities Commission, [1984] 57 ALR, 550cited in McDonagh....where the learned Judge stated: "I think that the words 'would or could reasonably be expected....to prejudice' mean more than ' would or might prejudice'. A reasonable explanation of an event requires more than a possible risk or chance of an event occurring'". They further argue that in their view the Revenue did not consider whether or not there was a reasonable likelihood of any real prejudice or impairment occurring in respect of the application of the section but rather considered the mere chance or possibility of prejudice or impairment as sufficient to allow a refusal.

In the joint submission dated 7 September 1999, the requesters argue that the concern of the Revenue is that the release of the documentation may disclose certain arguments to be made on their behalf in the course of the appeal process. They point out that "[i]t is a requirement in civil proceedings before a court or tribunal that the pleadings to be raised by parties are made prior to the hearing of the action. Indeed, where matters are not contained in pleadings and are subsequently raised at a hearing, it would be normal for the judge to rule out such arguments except in unusual circumstances. To state that the release of documentation which might contain details of the arguments to be raised on behalf of the Revenue Commissioners might prejudice the proceedings cannot be maintained in light of general court practices, which are in fact based on one of the cardinal principles of natural justice, the audi alteram partem rule. This fundamental principle includes not only the right to be heard but the right to receive prior notification of a charge or a case a party to any proceedings would be required to meet. The right of our clients to be notified of the case they have to meet includes the 'right to have the best possible chance to put forwardtheir side of the case in reply'and in particular, 'the right to all information relevant to the issue, including details of the case against and (probably) in favour of my clients'(see comments by Hogan and Morgan Administrative Law in Ireland 3rd Edition p. 541). Theaudi alteram partemrule has been incorporated into our Constitution 'by Article 40.3there is guaranteed to every citizen whose rights may be affected by decisions taken by others the right to fair and just procedures'.To accept the Revenue Commissioners' contention would be to ignore the practice before courts and tribunals of ensuring that all pleadings to be raised by parties are made prior to the hearing in order that the party that stands accused may know the case that they have to meet".

They argue further that "in the case ofThe State (Calcul International Limited and Solatrex International Limited) v The Appeal Commissioners and the RevenueCommissioners,the High Court in assessing the orders which the Appeal Commissioners are empowered to make stated that such orders could not be said to 'be an order which on the true intendment of the Constitution was one reserved to judges as being properly regarded as part of the administration of justice'. Accordingly, on behalf of our clients we would submit that an exemption under section 23(1)(a)(iv) is not available for an appeal before the Appeal Commissioners as they do not administer justice and cannot therefore be considered to be a court or tribunal".

Notwithstanding the points made above, the requesters argue that, on a practical basis, the details of the arguments raised by the Revenue have to a large extent already been disclosed in proceedings before the Appeal Commissioners and, therefore, it is difficult to see how the release of documentation which might disclose those arguments which have already been made could be held to prejudice or impair the fairness of the proceedings.

Section 22(1)(a)

P J O Driscoll & Sons, Solicitors, in their submission on behalf of Myles C Ronan & Associates refer me to the case of Smurfit Paribas Bank Limited v AAB Export Finance Limited [1990] ILRM, 58. They argue that, in this particular case, the Supreme Court distinguished between correspondence relating to legal advice and correspondence relating to legal assistance as between client and solicitor. They claim that the Supreme Court held that any communication made to a lawyer for the purpose of simply obtaining legal assistance rather than legal advice would not be privileged and must be disclosed. On this basis, they argue that any correspondence of a mere administrative nature e.g. relating to the forming of the opinion or the administration of the relevant section of the Tax Acts, should be disclosed. They suggest that I should consider, in respect of any correspondence that may be considered to be "mixed", the question of whether or not the document came into existence for the dominant purpose of giving legal advice. They suggest that this test is well accepted in Irish jurisprudence and was applied in the case Silverhill Duckling Limited v The Minister for Agriculture, Ireland and the Attorney General, [1987] IR, 251.

This point is also made by C M O'Sullivan, Solicitors on behalf of Donovan Kenny & Co in their submission of 23 April 1999. They also note that the Revenue in arguing legal professional privilege are relying on Silverhill Duckling [1987] IR, 251 and Crompton Amusement Machines (1974) AC, 405. Their position is that, while it is accepted that O'Hanlon J. in the Silverhill Duckling case adopted the words of Lord Denning M R in Crompton which referred to the "anticipation that proceedings might ensue", it should be noted that O'Hanlon J's adoption of these words should be qualified insofar as firstly, the decision in Crompton was ultimately decided on the basis of the public interest and not on the basis of legal professional privilege and therefore the words of Lord Denning M R are mere obiter dicta, and secondly, O'Hanlon J specifically stated that he would qualify the words of the Master of the Rolls in the Court of Appeal by further adopting the views expressed by the House of Lords in Waugh v. British Railways Board (1980) AC, 521 that the dominant purpose for the document coming into existence in the first place must be for the purpose of preparing for litigation then apprehended or threatened.

It was submitted by the requesters that I consider each individual record for which legal professional privilege is claimed, apply the dominant purpose test and further apply the distinction between legal advice and legal assistance as set down in the Smurfit Paribas case.

In the joint submission, dated 7 September 1999, my attention was drawn to the following comment in my decision in case number 98011:

"There are some situations in which legal professional privilege may not attach to communications between lawyer and client such as non-confidential communications or legal assistance other than the giving of advice or communications in furtherance of a criminal offence".

The requesters also argue that, as the exemption operates to defeat the spirit of the Act, then it is one that must be applied strictly.

The Revenue

Section 6(4)

The Revenue points out that all of the records except number 15 were created before 21 April 1998. It claims that this means that such records are "not records for the purposes of the Act". It is clear from the wording of the decisions made by the Revenue on internal review that it took account of the provisions of section 6(5) of the Act but decided that these provisions did not apply in the present cases.

Section 23(1)(a)(iv)

In relying on section 23(1)(a)(iv), the Revenue argues that part 40 of the TCA 1997 provides for hearing of appeals by the Appeal Commissioners which are to be oral hearings. It points out that while the Appeal Commissioners may issue precepts, requiring delivery by the appellant of certain written information prior to the hearing, the clear intention of the legislation is that an oral hearing is to be the means by which an appeal is determined by the Appeal Commissioners.

The Revenue argues that a requirement that would oblige the Inspector to disclose the detail of his or her proposed conduct of the case, in the absence of any such requirement in relation to the appellant, would be manifestly unfair. It does not claim that the disclosure of the Inspector's notes in preparation for the hearing would prejudice the likelihood of a determination by the Appeal Commissioners favourable to Revenue. Rather, it contends that such disclosure would prejudice the fairness of the proceedings of the appeal hearing.

In the case of the three records in respect of which the Revenue maintains that section 23(1)(a)(iv) applies, my officials asked the Revenue to explain, in some detail, how access to these records would disclose the Revenue's proposed conduct of the case. In respect of each record, the Revenue furnished explanations which satisfied me that access to the record or part of the record concerned would highlight a matter which the Revenue thought was of significance and which they might want to raise in the course of the appeal hearing.

In the light of section 43 of the Act, which requires me in the course of a review to take all reasonable precautions not to disclose the information contained in an exempt record, I need to exercise a degree of circumspection in describing these records and the other records in this case and in explaining my decision. However, the details given should be sufficient to enable the parties to understand the basis for my decision.

Section 22(1)(a)

The Revenue claims that section 22(1)(a) applies to the records specified above on the basis that the dominant purpose for which they were created was preparation for litigation that was apprehended or threatened. The Revenue argues that a memorandum dated 18 February 1998, addressed to Frances Cooke, Revenue Solicitor from Direct Taxes Administration concerning the notification of the appeal by the requesters to the Appeal Commissioners, made it clear that agreement could not be reached between the parties and that litigation could therefore be regarded as apprehended or threatened.

In support of its view that legal professional privilege applies, having regard to the dominant purpose for which the records were created, the Revenue has drawn my attention to Silverhill Duckling Limited, Ronald Stuart Steele and Elizabeth Patricia Steele v Minister for Agriculture, Ireland and the Attorney General [1987] ILRM in which a claim for compensation under the Diseases of Animals Act, 1966 was made by the plaintiffs in excess of that which the Department was willing to pay. This was notified to the defendants by letter dated 23 March 1984. The court found that litigation between the parties in the case could fairly be regarded as having been apprehended or threatened from the date on which it could reasonably be assumed that the defendants were notified in the ordinary course of post i.e. 26 March 1984. The court also found that, therefore, the defendants were entitled to claim privilege from that time forward in respect of communications passing between the Minister for Agriculture and his legal advisors relating to the claim and also in respect of documents prepared in connection with the claim and for the primary purpose of dealing with the claim. O'Hanlon J adopted the position of Lord Denning MR in the Court of Appeal's decision in Crompton (reported [1971] 2 All ER 353 at p.378) but qualified it by further adopting the views of the House of Lords in Waugh v British Railways Board (1980) AC, 521 where it was held that the dominant purpose for the document coming into existence in the first place should have been for the purpose of preparing for litigation then apprehended or threatened.

The Revenue also relies on P J Carrigan Limited and Patrick J Carrigan, Plaintiffs v Norwich Union Fire Society Limited and Scottish Union and National Insurance Company, Defendants [1987] IR, 683 in which O'Hanlon J held that

"privilege from disclosure may be claimed by a party in respect of documents which come into existence prior to the commencement of proceedings when it can be shown that the dominant purpose for the document coming into existence was for the purpose of preparing for litigation then apprehended or threatened".

The Revenue also refers to the case of Duncan v The Governor of Portlaoise Prison [1997] 11 IR, 558. In that case, the applicant did not contest the existence of legal professional privilege but claimed that it could not extend to factual material contained in the documents at issue. The Court rejected an application to have the documents furnished in a redacted form with the legal content, as distinct from the factual content, excised.

Finally, the Revenue referred me to the case of Charles Cully v Northern Bank Finance Corporation Limited [1982] ILRM, 683. In this case, a claim of privilege on the grounds of public policy was allowed.

Findings

Section 6

The records which remain to be considered by me in this review were all, with the exception of record number 15, created before the commencement of the Act, i.e. before 21 April 1998. These records relate to the formation by the Revenue of the opinions that certain transactions to which the requesters were party were tax avoidance transactions as described in section 811 of the TCA 1997 and to the arrangements made by the Revenue to prepare for the appeals by the taxpayers against these opinions.

By virtue of section 6(4) of the FOI Act, a right of access only exists to records created after the commencement of the Act. However, by virtue of section 6(5) of the Act the right of access also exists where:

"(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or (b) records created before such commencement relate to personal information about the person seeking access to them".

The Revenue refused access to these records on the basis that they were created before 21 April 1998, while also relying on section 22(1)(a) and section 23(1)(a)(iv). It is clear that the Revenue was aware of the provisions of section 6(5), but it decided that they do not apply in the present cases. No argument has been put to me by the requesters that section 6(5)(a) applies in these cases i.e. that access is necessary or expedient in order to understand records created after such commencement. In my decision in the case of Mr ABE and the Department of Marine and Natural Resources (decision number 98117) I explained in the following terms how section 6(5)(a) should be applied:

"In one sense "to understand" a document means simply to comprehend what is written in the document, or, in other words, to have a literal understanding of what it says. On this interpretation, a record is likely to be capable of being understood unless it is ambiguous or incomplete in some way or contains symbols or codes which are not explained in the record.

However, it seems to me that the word "understand" in section 6(5)(a) is not used in this narrow sense. In my view, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. Having said that I must make it clear that, in my view, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of a document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

I have also considered the significance of the use of the word "expedient" in section 6(5)(a). "Expedient" I take to mean "fit, proper or suitable to the circumstances of the case". [OED]. It is clear that the word "expedient" is less restrictive than the word "necessary". It might be argued that the use of the word "expedient" is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record. I do not accept that argument. It seems to me that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record. I consider that I would not be justified in holding that any pre-commencement record which deals with the subject matter of a post-commencement record or which might shed new light on that subject matter, is, per se, within the ambit of section 6(5)(a)".

Having examined the records numbered 1 to 15 in this case, I think it unlikely that access to any of these records is necessary or expedient in order to understand records created after 21 April 1998. In any event, I am not aware of any such record created after 21 April 1998 and the requesters have not pointed to any such record. In the circumstances, I find that section 6(5)(a) does not apply in this case.

The possible application of section 6(5)(b) turns on the question of whether the records relate to personal information about each of the requesters.

Section 2 of the Act defines "personal information" for the purposes of the Act as follows:

"personal information" means 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".

The section goes on to detail twelve specific instances of information which is personal. Of these, paragraph (ix) of the definition of 'personal information' is most relevant to this case. This provides that, without prejudice to the generality of the above definition,

"information required for the purpose of assessing the liability of the individual in respect of a tax or a duty owed or payable to the State or to a local authority, a health board or other public body or for the purpose of collecting an amount due from the individual in respect of such a tax or duty or other payment"

is also personal information.

The first point to be noted about this definition is that it refers to information about an identifiable individual. Two of the requesters in this case - ABP Limited and ABQ Company Limited - are not individuals. While some of the records relate to information about these requesters, they cannot relate to "personal information" about them, simply because a company cannot have "personal information" within the terms of the definition quoted above. It follows that, in the case of ABP Limited and ABQ Company Limited, section 6(5)(b) cannot apply to the records created prior to 21 April 1998. I find that these two requesters do not have a right of access to the fourteen records created prior to 21 April 1998, because neither section 6(5)(a) nor section 6(5)(b) applies to those records as far as these two requesters are concerned.

In the case of the five requesters who are individuals, the question arises as to whether the records in question relate to personal information about them. It is clear that information about an individual which is required for the purpose of assessing the liability of that individual in respect of a tax is personal information about that individual, provided it meets the requirements of paragraphs (a) or (b) of the definition of personal information. In the case of the five individual requesters, it is clear that the Revenue holds information about each of them which is required for the purposes of assessing their liability to tax and that it holds that information on the understanding that it would be treated by it as confidential. As I pointed out in the case of Mr Richard Oakley and the Office of the Houses of the Oireachtas (decision no. 99168)

"Many, if not all, of the types of information referred to in the list of items (i) to (xii) were understood by the parties to be confidential in the past, not because of the general understanding about the status of information held by the public bodies......... and the provisions of the Official Secrets Act, 1963, but because society expected (and still expects) these matters to be treated as confidential regardless of whether the party who acquires knowledge of them is a public body, a private institution or another individual. Generally speaking, the enactment of the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential".

It seems to me that the information about the individual requesters, their tax affairs and, specifically, the information about their involvement in the series of transactions which gave rise to the forming of the opinions under section 811 of the TCA 1997, is personal information about each of the requesters.

I should point out that not all of the records in question could be said to contain personal information about each requester. However, section 6(5)(b) does not require this; it is sufficient that the record relates to personal information about each requester for the section to apply. It is clear that the records were created solely in the context of, and for the purposes of, dealing with the tax affairs of particular companies and individuals. In the circumstances, I find that the records relate to personal information about the individuals concerned i.e. they relate to information held by the Revenue on the understanding that it would be treated as confidential and required for the purpose of assessing the liabilities of these individuals to tax. I find that section 6(5)(b) applies in the case of the five individual requesters.

Given the relationship between the parties, it may be of no practical significance that these records are within the ambit of the Act as far as the individuals are concerned but are not, as far as the companies are concerned. However, as will be clear from the above, the degree of access afforded by the Act to requesters in relation to records created prior to 21 April 1998 differs as between individuals and companies. It is a difference which I must observe, regardless of the significance or otherwise of doing so in cases such as these where companies and their shareholders/directors seek access to the same records.

Having established that the fourteen records created before 21 April 1998 are within the scope of the Act as far as the five individual requesters are concerned, I will now consider the application to these records of the exemptions claimed by the Revenue.

Section 23(1)(a)(iv)

Records numbered 1-3 are being withheld by Revenue either in whole or in part on the basis of section 23(1)(a)(iv). This section provides that

"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�

(i) ........... (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal,........"

In the submissions made to me on behalf of the requesters, three specific arguments in relation to the inapplicability of this exemption were made. Firstly, the requesters argue, in the light of the findings in the case of The State (Calcul International Limited and Solatrex International Limited) v The Appeal Commissioners and the Revenue Commissioners, that the Appeal Commissioners do not administer justice and are not a court or tribunal. Therefore, they argue, the release of these records cannot prejudice or impair the proceedings in a court or tribunal. Secondly, the requesters argue that the standard of proof required by the exemption was not met as the Revenue did not consider whether or not there was a reasonable likelihood of any real prejudice or impairment occurring in respect of the application of the section but rather considered the mere chance or possibility of prejudice or impairment as sufficient to allow a refusal. Thirdly, the requesters argue that the refusal to release documentation which might contain details of the arguments to be raised on behalf of the Revenue Commissioners cannot be maintained in light of general court practices, which are, in fact, based on one of the cardinal principles of natural justice, the audi alteram partem rule. The requesters argue that this fundamental principle would be satisfied by obtaining the records withheld by the Revenue in this case.

Since the requesters made these arguments, their appeals have been heard by the Appeal Commissioners. Arising from this, the Revenue agreed to release some further material to the requesters. It is obvious that, in these circumstances, the release of the remainder of the records could not prejudice or impair the proceedings before the Appeal Commissioners since these proceedings have concluded. However, the Revenue still maintains that section 23(1)(a)(iv) applies to the records in this case because, if the Appeal Commissioners rule against the taxpayers, the latter may appeal to the Circuit Court and, it says, access to the disputed parts of the three records could reasonably be expected to prejudice or impair the fairness of any such proceedings.

It seems to me that in conducting a review under section 34(2) of the Act, I must have regard to any changed circumstances as between the date of the Revenue's decision and my decision. Therefore, I can, and must, take account of the argument of the Revenue that prejudice to, or impairment of, the fairness of proceedings before the Circuit Court could reasonably be expected from release in this case.

Strictly speaking I need no longer consider the question of whether the Appeal Commissioners are a tribunal. However, as the matter is likely to arise again in the future, I would make the following comments.

The definition of a tribunal in Hogan and Morgan's book Administrative Law in Ireland, (p. 256) is that a tribunal is

"a body, independent of the Government or any other entity but at the same time, not a court, which takes decisions affecting individual's rights, according to some fairly precise (and usually legal) guidelines by following a regular and fairly formal procedure".

Indeed, the authors list the Appeal Commissioners as an example of a tribunal.

I am advised that the finding in the Calcul case is no more than authority for the proposition that the Appeal Commissioners are not exercising judicial functions of a more than limited nature and are not administering justice. I am advised that the Appeal Commissioners are a tribunal exercising limited functions of a judicial nature and, in so doing, does not fall foul of the Constitutional provisions which require judicial functions of a more than limited nature to be carried out by judges in courts established under the Constitution. In the light of this, I would accept that the Appeal Commissioners are a tribunal for the purposes of section 23(1)(a)(iv).

The second argument made by the requesters relates to the provision in section 23(1)(a) that a request for access to a record may be refused where, in the opinion of the head, there is a reasonable expectation that access could prejudice or impair the fairness of proceedings before a court or tribunal. The requesters argue "that the words contained in section 23(1) are similar to those considered by Woodward J in the Australian case of News Corporation Limited v National Companies and Securities Commission, [1984] 57 ALR, 550 cited in McDonagh....where the learned Judge stated: "I think that the words 'would or could reasonably be expected....to prejudice' mean more than 'would or might prejudice'. A reasonable explanation of an event requires more than a possible risk or chance of an event occurring".

While, in seeking to apply this exemption, the head may form an opinion that the formula contained in section 23(1)(a)(iv) is satisfied, it is necessary for the purpose of my review under section 34 that the head show to my satisfaction that the decision to refuse access was justified. The section provides that a head may refuse access if access "could" reasonably be expected to lead to the harms detailed therein. The word "could" seems to allow for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". It seems to me that a head can justifiably form the opinion that harm could reasonably be expected to flow from access to certain records where such harm is not certain to materialise but might do so. In my view, the matters which it is sought to safeguard are of so important and critical a nature that the test for exemption is more broadly framed in order to capture any records which might possibly have an adverse effect of some kind on the various matters mentioned.

In the case of The Sunday Times Newspaper & Others and the Department of Education and Science (decision number 98104), I explained my approach to interpreting the words

"could...reasonably be expected to...."in the context of section 21 of the Act. Having reviewed the case law dealing with the interpretation of this phrase in the context of Freedom of Information legislation in other jurisdictions, I concluded that "Some care is needed in relying on the dicta which I have just quoted because in the Cockcroft case the majority warned against the dangers of paraphrasing the words under discussion. Nevertheless, it seems to me that the dicta are useful in highlighting that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.

It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur".

In this case, the Revenue has identified the harm as prejudice to, or impairment of, the fairness of proceedings, originally before the Appeal Commissioners, and, now, possibly, before the Circuit Court.

It is to be presumed that the words "prejudice" and "impair" were not intended to be synonymous and so, taking their ordinary literal meaning, it would seem that the Oireachtas required the head to consider whether (a) the fairness of civil proceedings before a court or tribunal could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or (b) the fairness of such proceedings could reasonably be expected to be impaired (that is to say, damaged or weakened).

The Revenue argue that a requirement which would oblige the Inspector to disclose the detail of his or her proposed conduct of the case, in the absence of any such requirement in relation to the appellant, would be manifestly unfair. For the Revenue to succeed in its argument, I have to be satisfied that it may reasonably be expected that granting access in this case could disclose some aspect or aspects of the case which it might want to make before the Circuit Court and that such disclosure could reasonably be expected to prejudice or impair the fairness of those proceedings. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for the Revenue to show that it expects such an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. I am satisfied, based on a perusal of the records and the explanations of the Revenue, that release could reasonably be expected to disclose an aspect of the case which it might want to make before the Circuit Court. However, this does not conclude the matter because the requesters say that any such disclosure could not affect the fairness of proceedings before the Appeal Commissioners or presumably before the Circuit Court. In so doing, they rely largely on the audi alteram partem rule.

In contrast, the Revenue argues that it is not that the disclosure of the Inspector's notes in preparation for the hearing would prejudice the likelihood of a determination by the Appeal Commissioners (or presumably, the Circuit Court) favourable to Revenue but rather that such disclosure would prejudice the fairness of the proceedings of the appeal hearing. When the Revenue originally made this argument it was concerned, of course, with material which might disclose its proposed conduct of the case before the Appeal Commissioners. That hearing has now concluded but the Revenue maintains that particular matters alluded to in the records did not arise before the Appeal Commissioners but might before the Circuit Court. This points to a danger in taking the Revenue's argument too literally. It is clear that its argument is that it is unfair to oblige the Inspector to disclose, not alone the detail of his/her proposed conduct of a case on appeal, but also matters which would disclose any case which it might want to make on appeal.

Strictly speaking, I only need to consider this question in relation to proceedings before the Circuit Court. However, it is convenient to consider it by reference to both the Appeal Commissioners and the Circuit Court because there are many similarities between their respective procedures.

The requesters point out that the audi alteram partem rule has two particular aspects to it: first, that a person have adequate prior notice of any charge or decision made against him, including the right to all information relevant to the issue, particularly the details of the case against him and, secondly, that a person be afforded appropriate and adequate facilities for making the best possible case in reply.

However, this ignores the fact that the case being made in this instance is instigated by the requesters and not by the Revenue. The Revenue is therefore responding and should be given an adequate opportunity of making its case in response.

The tax system provides for self-assessment, whereby the taxpayer lets the Revenue know what his liability to tax is and the Revenue accepts this estimation unless further investigation is done and they do not agree with the taxpayer's submissions.

Section 811 of the TCA, 1997 also allows the Revenue to form an opinion that certain transactions are "tax avoidance transactions" but provides for an appeal against such an opinion.

An argument could be made that, in appealing a decision of the Revenue to the Appeal Commissioners, the taxpayer is still, in essence, answering a charge of the Revenue. However, it seems to me that, if this is accepted, then account should be taken of the extent to which the Revenue has let the taxpayer know of the nature of the view taken, the basis upon which it was made, the taxpayer's own knowledge of his affairs and the applicability or otherwise of the quoted tax legislation to those affairs. I note that section 811(6)(a) requires the notice of opinion issued under the section to specify the transaction(s) which in the opinion of Revenue are tax avoidance transaction(s), the tax advantage to be denied to the person to whom the notice is given, and the tax consequences of the transaction insofar as they relate to the person. In this case the Revenue appears to have complied with the provisions of section 811(6)(a). So, even if the view were taken that, in appealing a decision of the Revenue to the Appeal Commissioners, a taxpayer is, in a sense, answering a case rather than making one, I consider that the audi alteram partem rule would nevertheless be sufficiently observed in a case such as this where full and detailed notice and particulars of the Revenue's case under section 811 have been given to the taxpayer.

On balance, however, it seems to me that an appeal to the Appeal Commissioners is a case being made by the taxpayer which is to be answered by the Revenue.

It seems to me that the audi alteram partem maxim is relevant in this instance only to the extent that the appellants must be given an opportunity to be heard in reply to any submissions made by the Revenue to the Appeal Commissioners. In my view this is provided for in the procedures of the tribunal. These procedures provide for an oral hearing before the Commissioners and neither side is obliged to disclose its position fully in advance. The procedures also provide for the appellant taxpayer to go first, for the Revenue to respond and for the taxpayer to have final reply. The taxpayer will therefore have heard the Revenue's submissions in full and, to the extent that he is in any way wrongfooted by these, he may reply or, indeed, perhaps seek an adjournment to allow him to prepare a full reply to some unexpected point raised by the Revenue.

I should also point out that the audi alteram partem rule has the same relevance when one is considering an appeal to the Circuit Court. Once again, the party which has to answer the case is the Revenue, not the taxpayer. Once again, the Circuit Court procedures allow the taxpayer a right to reply to any submissions made by the Revenue. Having regard to my earlier remarks in this context, it seems to me that, as with an appeal to the Appeal Commissioners, the rehearing in the Circuit Court is a case being made by the taxpayer which is to be answered by the Revenue.

The requesters also contend in relation to the application of this maxim that the exchange of pleadings prior to a hearing is an embodiment of the audi alteram partem rule and that this would be satisfied by obtaining the release of the records in this case. By implication, the requesters are suggesting that far from prejudicing or impairing the fairness of proceedings before the Appeal Commissioners, the granting of access to these records would ensure the fairness of the proceedings. I am advised that the procedures in relation to the proceedings of the Appeal Commissioners do provide for a form of pleading by way of the form AH1. This form sets out the points in dispute, the relevant sections of the tax legislation and a list of decided tax cases to which reference may be made. This form is exchanged between the taxpayer and the Revenue and the appellant is invited to suggest amendments or additions to this form. The result is the same as that which is theoretically derived from an exchange of pleadings in a court case, viz. a refining and distillation of the points in dispute and a setting of the parameters for the forthcoming hearing.

Further, I am advised that, a distinction must be drawn between pleadings and submissions. It seems to me that what the requesters are seeking from the Revenue in this case are the Revenue's submissions. I am advised that, in court procedure, it is true to say that, for example, in the High Court, a Summons setting out the claim in brief, a Statement of Claim setting out the claim in greater detail and a Defence and Reply are exchanged between the parties. These do not, however, contain the submissions of the parties, which will first be aired in court.

I am advised that it is not formally a part of court procedure that legal submissions be exchanged and this is not normally done outside of complicated cases, and, even then, it is done by agreement and/or by edict of the court. I am advised that, while this is an increasingly common feature of superior court practice, it is never the case that one party is obliged to furnish submissions to the other without reciprocation. The procedure with exchange of written submissions is that the party initiating the proceedings usually furnishes the responding party with his submissions and the responding party then has a period of time within which to furnish submissions in reply.

The records being sought by the requesters in this case are not even the equivalent of the legal submissions which are exchanged between parties to court proceedings from time to time. The latter type of submission is drafted with a view to being served on the other side and submitted to the court. It is carefully drafted and puts the drafting party's "best foot forward". In the instant case, access is being sought to material which was drafted in the belief that it would never be disclosed to any outside party. It could provide fodder for the devising of tactical advantages.

Based on the lack of reciprocity, the potential for making a possibly detrimental inroad into the Revenue's ability to prepare confidentially for the conduct of proceedings in the case and my rejection of the argument that access to the records concerned is actually required in order to comply with the audi alteram partem rule, I am satisfied that it could reasonably be expected that release in this case could prejudice or impair the fairness of any proceedings before the Circuit Court.

There is one final comment which I should make before leaving the question of the application of section 23(1)(a)(iv). It relates to the fact that, as of now, there are no proceedings in train before the Circuit Court in this case. It seems to me that this is not fatal to the Revenue's case. Such proceedings are not just a remote possibility but a real likelihood in the event that the Appeal Commissioners uphold the opinions of the Revenue. In the circumstances, I am satisfied that the level of likelihood of the coming into existence of such proceedings is sufficient for section 23(1)(a)(iv) to apply and that, for the reasons given, that it is reasonable to expect that the fairness of such proceedings could be prejudiced or impaired by granting access to the disputed records.

I find, therefore, that the Revenue is entitled to rely on section 23(1)(a)(iv) to refuse access to these records.

Section 22(1)(a)

The Revenue argues that section 22(1)(a) applies to the records numbered 4 to 15 on the basis that the dominant purpose for which they were created was in preparation for litigation that was apprehended or threatened.

The requesters have asked me to consider the application of the exemption to each of these records, to apply the dominant purpose test and apply the distinction between legal advice and legal assistance as laid down in the Smurfit case. In the joint submission made by the requesters, my attention was drawn to the following comment in my decision in case no. 98011:

"There are some situations in which legal professional privilege may not attach to communications between lawyer and client such as non-confidential communications or legal assistance other than the giving of advice or communications in furtherance of a criminal offence".

The requesters argue that, as the exemption operates to defeat the spirit of the Act, then it is one that must be applied strictly.

I am advised that the scope of legal professional privilege covers two separate matters. The first limb of the rule covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). The second limb of the rule covers documents prepared in contemplation of litigation apprehended or threatened provided the dominant purpose of the communication or the coming into existence of the document was in preparation for litigation, apprehended or threatened.

It seems to me that P J O'Driscoll & Sons, are arguing in their submissions for an amalgam of the two limbs of the legal professional privilege rule. In my view, this is not correct. There is no requirement for the purposes of meeting the second limb of the test, that the dominant purpose of the communication be the requesting or giving of legal advice. It seems to me that this is clear from the approach adopted by O'Hanlon J in the case of Silverhill Duckling Limited [1987] IR, 251, on which both C M O'Sullivan & Co and the Revenue rely. It is also clear from the case of P J Carrigan Limited and Patrick J Carrigan and Norwich Union Fire Society Limited and Scottish Union and National Insurance company [1987] IR, 683.

I have also considered the other two cases to which the Revenue referred me Duncan v The Governor of Portlaoise Prison [1997] 11 IR, 558 and Charles Cully v. Northern Bank Finance Corporation Limited [1982] ILRM, 683, although I find them of no assistance in deciding the application of section 22(1)(a) in this case.

Turning to the facts of the present case, I note that the Revenue issued opinions under section 811 TCA 1997 in August 1997. The requesters lodged appeals against those opinions soon afterwards. It seems to me that, at that point, the position of the Revenue was analogous to that of the Department of Agriculture at the point in the Silverhill Duckling case when it had been notified of the plaintiff's claim. Proceedings, first before the Appeal Commissioners, and, in due course before the Circuit Court and possibly the higher courts, can fairly be regarded as having been apprehended or threatened. I am advised that in applying the rule on legal professional privilege, litigation encompasses not alone court proceedings but also proceedings before tribunals exercising judicial functions, such as the Appeal Commissioners. I note that all of the records numbered 4 to 15 were created well after the appeals were lodged.

I have carefully considered the contents of the records. They are documents which passed between various Revenue officials and the Revenue Solicitor or between other Revenue officials in preparation for the hearing before the Appeal Commissioners. These communications do not contain legal advice. However, I am satisfied that the dominant purpose in creating them was preparation for the threatened appeal to the Appeal Commissioners. In the circumstances, I am satisfied that section 22(1)(a) applies to all of these records.

Decision

Having completed my review under section 34(2) of the FOI Act, I affirm the decision of the Revenue to refuse access to the whole of the records numbered 4 to 15, and to the parts of the records numbered 1 to 3 as described above.

Information Commissioner

17 December 1999