Case 98158 - MRS. ABZ and the Office of the Revenue Commissioners. Records relating to the requester's tax affairs- whether the requester has a right of amendment - consequences of amendment - whether the right of amendment applies to pre-commencement records - onus of proof and standard of proof - meaning of the words "incomplete, incorrect or misleading" - section 17

Case Summary

Facts

The requester was involved in a dispute with the Revenue regarding the amount of tax assessed as due by herself and her husband for the years 1981/82 to 1990/91 inclusive. In 1993, her husband agreed a tax settlement with the Revenue in respect of the liabilities for these years. A statement of affairs was submitted, by an accountant, to the Revenue in the course of the negotiations which led eventually to the 1993 settlement. Under section 17 of the FOI Act, Mrs ABZ sought to have the statement of affairs amended and the figures for living expenses contained therein replaced by her estimate for living expenses for the years in question.

Decision

The Commissioner said that the right of amendment in section 17 applies to records containing personal information, regardless of the date of their creation. He said that it is a matter for the public body to "carry through" the effects of an amendment to any subsequent rights or liabilities. He decided that the onus was on the applicant to satisfy him that, on the balance of probabilities, the information was incomplete, incorrect or misleading.

He was not satisfied that Mrs ABZ's revised figures had any greater claims to accuracy than the original figures. He was not satisfied that the information provided by Mrs ABZ was sufficient to prove that, on the balance of probabilities, the original figures were incomplete, incorrect or misleading or that the substitution of her figures for the original figures would make the information complete or correct or not misleading. He found that Mrs ABZ was not entitled to have the statement of affairs amended under section 17.

Date of Decision: 03.08.2000

Background:

The background to this review lies in a dispute between the requester, Mrs ABZ and the Office of the Revenue Commissioners ("the Revenue") regarding the amount of tax assessed as due by herself and her husband for the years 1981/82 to 1990/91 inclusive. In 1993, Mr ABZ agreed a tax settlement with the Revenue in respect of the liabilities for these years. Mrs ABZ now considers that the amount of tax assessed was too high. Central to Mrs ABZ's claim is a statement of affairs submitted by an accountant, Mr ACA, to the Revenue in the course of negotiations which led eventually to the 1993 settlement. Mrs ABZ says that the statement of affairs is incorrect, that it should be removed from the Revenue's file and that the 1993 settlement should be re-opened and the tax due calculated on the basis of a revised statement of affairs. In pursuing her attempts to have this matter re-opened, Mrs ABZ made a number of requests under the Freedom of Information Act, 1997 ("the FOI Act"). For the purposes of the present review I am concerned only with the two requests which are described below.

On 5 May 1998, Mrs ABZ made a request to the Revenue for access to, among other things, all legal advice concerning her own and her husband's tax situation. On 8 June 1998, the Revenue refused access under section 22(1)(a) to certain records which either sought or contained legal advice because it considered that these records would be exempt from production in proceedings in a court on the ground of legal professional privilege. On 25 June 1998, Mrs ABZ sought an internal review of this decision. On 11 August 1998, the Revenue affirmed the initial decision.

On 12 June 1998, Mrs ABZ requested, among other things, that the statement of affairs referred to above be removed from their file. On 28 July 1998, the Revenue refused this request but indicated that it would attach a copy of her request to the statement of affairs. On 18 August 1998, Mrs ABZ sought an internal review of this decision. On 9 September 1998, the Revenue affirmed the initial decision.

On 6 November 1998, Mrs ABZ applied to my Office for a review of the decision of the Revenue to refuse access to all legal advice received by the Revenue concerning her and her husband's income tax situation. She also sought a review of the decision of the Revenue not to "correct the submissions made on our behalf ... and the income tax liability resulting from same." She also asked for "all vilification of us to be removed from the file."

Having considered the matter, I decided to review the decisions of the Revenue referred to above and invited submissions from Mrs ABZ and the Revenue. My Office informed Mrs ABZ accordingly by letter on 16 November 1998.

Before outlining the process of review and the submissions of the parties, I need to describe, in a little more detail the records which are at issue in this case and some of the circumstances surrounding their creation and use. The statement of affairs, to which I have already referred, was submitted to the Revenue by Mr ACA, by letter dated 26 February 1992. Although referred to by Mrs ABZ as a statement of affairs (which terminology I have adopted throughout this decision), the document is described by Mr ACA as consisting of a draft statement of affairs, a capital reconciliation statement and a draft of Mr ACA's calculation of the tax liabilities for the years 1981/82 to 1990/91 inclusive.

The statement of affairs purports to set out Mr ABZ's assets and liabilities as at two dates - 1 January 1980 and 31 December 1989. The capital reconciliation statement purports to estimate Mr ABZ's income for the period falling between these two dates. It does this by adding together four figures representing the increase in net assets during the period (calculated by simply subtracting the figure for net assets as at 1 January 1980 from the corresponding figure as at 31 December 1989), an amount in respect of income tax paid during the period, an amount in respect of motor vehicles purchased during the period and an amount (�52,100) in respect of living expenses. It is clear from the document that Mr ACA did not put forward the figure of�52,100 as an accurate total of the living expenses for the period in question or even as an estimate which he could back up with evidence. I say this because, on the same page, Mr ACA set out the income tax exemption limits for a married couple for each of the years 1981/82 to 1990/91 and totalled them to give the figure of �52,100 and it is clear that this is the basis for his figure for living expenses. Having estimated Mr ABZ's income for the period in this fashion, Mr ACA went on to calculate the total tax liabilities for the relevant years as�48,862.

On 5 March 1992, Mr ACA and Mr and Mrs ABZ met with an Inspector of Taxes to try to settle the liabilities for the relevant years. The Inspector of Taxes indicated that, prior to the meeting, he had made his own calculation of the amount of any settlement and had come up with a figure of �101,653. This was based on Mr ACA's submissions, with two important differences. The first difference is that the Inspector of Taxes estimated the living expenses for the period at �104,200 - exactly double the figure proposed by Mr ACA. The second difference is that, in calculating the liability due, the Inspector of Taxes took into account tax already paid and then made an adjustment for interest and penalties. After some bargaining, Mr ABZ eventually indicated verbally that he would be prepared to settle the matter by paying �80,000. It is clear that Mr and Mrs ABZ had considerable misgivings about the settlement because, very soon afterwards they engaged Mr ACB, a tax consultant, to advise them as to whether the settlement was reasonable. Eventually, in November 1993, Mr ACB negotiated a settlement on behalf of Mr and Mrs ABZ amounting to�50,710 involving a repayment by the Revenue to Mr ABZ. The Revenue has stated, and I accept this to be the case, that the submissions made by Mr ACA formed part of the process in determining the liability in this case, but was not the sole input in arriving at the final settlement.

In relation to Mrs ABZ's request of 5 May 1998, there are eight records on file reference PTU 3202/95, totalling 13 pages, representing correspondence between various Revenue officials and the Revenue Solicitor. It is not necessary for me to give any further details of these records other than to note that they consist entirely of correspondence seeking and giving legal advice.

In the letter to Mrs ABZ on 16 November 1998, my Office explained that under section 22(1)(a) of the FOI Act, a head of a public body is obliged to refuse to grant a request for access to a record if the record concerned "would be exempt from production in proceedings in a court on the ground of legal professional privilege." My Office invited her to address the question of why this section should not apply to the legal advice to which she had been refused access. This letter also pointed out that my function as Information Commissioner is to uphold rights under the FOI Act - in this case her right of access and her right to have incomplete, incorrect or misleading information amended. It added that if she was dissatisfied with the assessment of the Revenue Commissioners, she should consider her right of appeal under the Income Tax Acts to the Appeal Commissioners for the purposes of the Tax Acts.

Following the receipt of a submission from the Revenue in December 1998, my Office wrote again to Mrs ABZ on 22 February 1999 seeking clarification as to what amendment she required to the statement of affairs. My Office also sought 'appropriate information' in support of the application for amendment, as provided for in section 17(2) of the FOI Act. My Office also referred to Mrs ABZ's request that 'vilification' should be removed from the file and indicated that, in the absence of any further specific claim on this point, it appeared that there was nothing that the Information Commissioner could review. On 3 March 1999, a meeting was held between two of my staff and Mrs ABZ and one of her public representatives. At this meeting, Mrs ABZ agreed that her accountant would submit evidence that the information contained in the statement of affairs was incorrect. She also agreed that the review could be suspended in order to allow my Office to endeavour to effect a settlement between herself and the Revenue. Sheagreed to reconsider her position in relation to the records to which access had been refused on the ground of legal professional privilege.

On 14 April 1999, I received a letter from ACC & Co, Certified Accountants, acting for Mrs ABZ, which raised two matters in respect of the 1993 settlement. The letter enclosed a copy of the Inspector of Taxes' computations to which I referred earlier and argued that the figure for living expenses was incorrect. Despite referring to the Inspector of Taxes' calculations, I think it is clear that the letter from ACC & Co is intended to support the proposition that the figure for living expenses contained in Mr ACA's original statement of affairs is incorrect and that that part of the statement of affairs should now be amended by the insertion of a figure proposed by Mrs ABZ.

The accountants also claimed that the Inspector of Taxes' calculations did not give appropriate credit for tax paid by Mr ABZ in respect of the tax year 1990/91. Essentially this is a claim to have the Inspector of Taxes' calculations amended. The question of amending the Inspector of Taxes' calculations of the tax paid is a matter which was raised by ACC & Co for the first time. Therefore, strictly speaking, it is not a matter which I can deal with in this review because it has not been the subject of a decision under the FOI Act by the Revenue. However, I hope that this decision will provide some guidance to the parties on how I might approach this matter should it be the subject of a further review. This is without prejudice to their rights to make further submissions on the matter in any future review should they so desire.

Despite the request from my Office, Mrs ABZ did not clarify what she meant by the removal of the vilification from the file and therefore there is no decision by the Revenue open to review by me on this point. Neither did she inform me of the result of her reconsideration of the records to which access had been refused on the grounds of legal professional privilege.

At this stage I can summarise the questions which are before me in this review as follows:

• whether or not Mrs ABZ is entitled to have Mr ACA's statement of affairs amended by substituting her estimate for living expenses for his original figure, and
• whether or not Mrs ABZ is entitled to access to the eight records in respect of which the Revenue has claimed exemption under section 22(1)(a).

Submissions

The Revenue

The Revenue treated Mrs ABZ's requests as requests under section 17 of the Act. It pointed out that Mrs ABZ had sought removal of Mr ACA's submissions in her request to the Revenue but that she sought correction of the record when she applied to my Office. Nevertheless, the Revenue, correctly in my view, indicated that it was satisfied to deal with both matters together. It pointed out that the FOI Act provides that, in the event of a refusal of a request under section 17, the application for amendment should be attached to the record concerned where practicable and stated that this had been done. The submission suggested that the applicant had failed to provide information as to the manner in which the record concerned was incomplete, incorrect or misleading to such an extent that its entire removal or amendment was justified. It contended that "it is not sufficient for an applicant merely to state that the particular record is incomplete, incorrect or misleading. There must be sufficient evidence provided in support of the claim, which must be capable of being verified." It suggested that I should take into account the effect of a deletion or amendment on the integrity of the file as a record of the events to which it relates. It contended that the record in question, together with other records on the file and the eventual settlement agreed between the ABZs and the Revenue, constitute a complete and correct record of the events to which they relate. Deletion would lead to an incomplete and misleading account of the events and make other documents and events inexplicable.

It stated that a settlement had been agreed between the Revenue and the taxpayer, Mr ABZ, in December 1993 which resulted in a repayment to Mr ABZ. It stated that the statement of affairs was an important input into the process of arriving at a settlement of his tax affairs but that it was not the sole input. It stated that information conveyed in a statement of affairs is usually subject to correction and adjustment arising out of subsequent correspondence and that, read in this context, the record is neither incomplete, incorrect nor misleading.

It further submitted that the appropriate remedy under section 17 is one which preserves the integrity of the original record unless this would lead to continuing inequity for the person concerned and stated that such a situation might occur where the information on file continues to prejudice the requester's rights or benefits. In this case, the Revenue stated that the record relates to events which are now finalised and has no bearing on current or future rights or benefits of the requester.

The Revenue said that a valid agreement was entered into by the ABZs and cannot now be repudiated. It said that the tax settlement was final and conclusive and not subject to appeal.

The Revenue did not consider it necessary to make any submission in relation to its claim for exemption of certain records under section 22(1)(a).

The requester

Mrs ABZ stated that the statement of affairs was prepared by Mr ACA who, she alleges, had misrepresented his professional qualifications. She said that he failed to appeal the initial assessments made. She stated that Mr ACB reached an agreement "behind our backs" and based on the initial statement of affairs.

Her basic contention is that the amount of tax paid in accordance with the settlement was too high because the figure in the statement of affairs for living expenses was too high. ACC & Co prepared a new set of figures for the tax liability for the period based on a figure for living expenses of �20,500 as estimated by Mrs ABZ. This estimate is based on her recollection of expenditure in the years 1981 to 1990. It consists of a round sum figure for each year adjusted by reference to certain itemised expenditure. In addition, Mrs ABZ offered some brief details of the family's lifestyle by way of explanation as to why the figure for living expenses was so much below Mr ACA's estimate.

Mrs ABZ did not dispute that her husband accepted the tax settlement agreed with the Revenue and signed his acceptance on a memorandum dated 13 December 1993. Nor did she give any explanation as to why he had accepted the settlement.

Findings

As I indicated earlier, two issues arise in this review

• the question of Mrs ABZ's right of amendment under section 17 of the FOI Act of the record which she claims contains incorrect information about her family's living expenses, and
• the question of Mrs ABZ's right of access to the other records in respect of which the Revenue has claimed exemption under section 22(1)(a).

I shall deal with these two questions in the above order.

Section 17Section 17(1) of the FOI Act deals with the amendment of personal information relating to a requester. It provides: "Where personal information in a record held by a public body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by the individual to whom the information relates, amend the record-

(i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,

(ii) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or

(iii) by deleting the information from it."

Before dealing with the specific facts of this case, there are four preliminary issues which I need to address viz.

• the consequences of amending a record on foot of a request under section 17,
• the onus of proof in cases where an individual seeks to exercise the right conferred by section 17,
• the question of whether section 17 applies to records created before the commencement of the Act, and
• the meaning of the words 'incomplete, incorrect or misleading.'

I shall address each of these matters in turn.

The consequences of amendment

It is clear from Mrs ABZ's submissions that she not alone seeks amendment of the statement of affairs in this case, but she also wants the Revenue to re-open the 1993 settlement and, presumably, to refund some of the money paid on foot of that settlement.

The FOI Act is silent as to how an amended record should be treated and as to the consequences of the amendment for the rights and liabilities of the applicant. Given that the FOI Act does not give me any powers in relation to the functions of public bodies, other than those powers in relation to the FOI Act itself, I consider that it is a matter for the public body to "carry through" the effects of the amendment to any subsequent rights or liabilities. My remit extends only to deciding whether the personal information is incomplete, incorrect or misleading and to deciding on the form of amendment, where appropriate. I have no role, as Information Commissioner, in determining what further action the public body ought to take in the light of an amendment to a record made under section 17.

Should a public body fail to "carry through" the effect of an amendment, applicants may have other avenues of administrative or judicial review open to them. These could include various statutory appeals mechanisms, a complaint to the Ombudsman or recourse to the courts. Effectively, the amended information may form new evidence which may have to be considered by the reviewing authority for the purposes of determining the rights or liabilities of the applicant.

The onus of proof and the standard of proof

Many (although not all) disputes about amendment of records will turn on the question of whether the information is incomplete, incorrect or misleading. The FOI Act is silent on the question of where the onus of proof lies in section 17 cases. I take the view that, in the absence of any express statement in the FOI Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. The Act is also silent as to the standard of proof which should apply in such cases. I take the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows that an applicant, seeking to exercise the right of amendment under section 17, must show me that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

Application of section 17 to records created before the commencement of the Act

It will be clear from the facts of the present case that the record which is sought to be amended was created prior to the commencement of the FOI Act. The question arises as to whether the right of amendment can apply to such a record.

The right of amendment applies to 'records held by a public body'. On the face of it, this is sufficient to cover records held by a public body regardless of the date of their creation. Furthermore, although the term "held by a public body" is not defined in the FOI Act, it is also used in section 6 of the Act in circumstances which make it clear that the meaning of the phrase is not confined to records held by the public body created after the commencement of the Act. I say this because section 6(6) provides that there is no right of access to a record held by the public body in the case of certain personnel records created more than 3 years before the commencement of the Act. It is clear from this provision that the phrase 'record held by a public body' as used in section 6 is not confined to records created after the commencement of the Act. I can see no reason why a similar interpretation of the phrase should not apply in the case of section 17.

Furthermore, the right of amendment in section 17 is confined to personal information. A requester has a right of access to a record relating to personal information about him or her (subject to any exemption in the Act) regardless of the date of creation of the record. In the circumstances, it seems to me that it is entirely consistent with the scheme of the Act that the right of amendment in section 17 should also apply to records containing personal information, regardless of the date of their creation.

The meaning of "incomplete, incorrect or misleading"

The Oxford English Dictionary defines "incomplete" as "not complete; not fully formed, made, or done; not whole, entire, or thorough; wanting some part; unfinished, imperfect, defective". It defines "complete" as "having all its parts or members; comprising the full number or amount; embracing all the requisite items, details, topics, etc.; entire, full". It defines the term "incorrect" as "not in accordance with fact; erroneous, inaccurate". It defines the term "correct" as "in accordance with fact, truth, or reason; free from error; exact, true, accurate; right." It defines the term "misleading" as "that leads astray or causes to err." Clearly there is an element of overlap between the three terms in the sense that information which is incomplete or incorrect may also have the propensity to mislead.

Care is needed in applying the above definitions in the context of section 17. For example, it should be noted that it is the information rather than the record which must be incomplete, before the right of amendment may be exercised. Personal information in a record is not incomplete merely because the record does not contain all the information which the applicant might like it to contain. It seems to me that the word incomplete in section 17 is used in the sense of imperfect or defective or lacking certain requisite items or details. In deciding whether the information can be so described, regard has to be had to the purpose for which the information is held. It can be said to be incomplete if it lacks certain requisite details i.e. details required by the circumstances in which the record is created or required for the uses to which the record is put or which might put a different complexion on the information.

The assessment of whether certain factual information is incorrect will often be straightforward. However, it is possible to envisage a case in which an applicant challenges the version of events concerning him or her contained in a record. In such cases a right of amendment exists provided the applicant shows that, on the balance of probability, the account of events, to the extent that it concerns him or her, is not in accordance with the facts or is erroneous or inaccurate.

In some cases the information at issue may be information inferred or concluded from factual information and may contain an element of judgement, in the nature of opinion or estimate. I believe that section 17 does provide a right of amendment of this type of personal information. The definition of "personal information" includes "the views or opinions of another person about the individual", so the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. However, in my view, section 17 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 17 is made. It is not my intention to present an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading". However, I would expect the applicant to satisfy me that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon.

A determination by a properly appointed authority is worthy of special mention. For example, a determination in relation to the entitlements of an individual as a beneficiary under the Social Welfare Acts, or a determination of the liability of an individual in respect of tax or duty payable, cannot be deemed to be incomplete, incorrect or misleading if made by a properly appointed and authorised person and in the absence of a successful appeal as provided by the appropriate legislation. Section 17 of the FOI Act does not provide an alternative appeal mechanism against such determinations. However, my comments above on the duty of the public body to "carry through" may be relevant if the facts underlying such a determination are amended on foot of an application under the FOI Act.

Method of amendment

As indicated earlier, Mrs ABZ expressed her application under section 17 in different ways - as an application for the removal of the statement of affairs from the file and as an application to "correct" that statement. Where a record contains personal information which is incomplete, incorrect or misleading there are three methods of effecting the amendment provided for by section 17 viz:

"(i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,

(ii) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or

(iii) by deleting the information from it."

The FOI Act does not provide guidance as to which method is appropriate under what circumstances. In the absence of such guidance, it appears to me that the decision on amendment should be based on the principles of natural justice and sound administration. The type of amendment required by the applicant is only one of the factors which must be taken into account. The Information Commissioner of Queensland in Jesser and the University of Southern Queensland (decision number 97015) stated:

"In deciding on the form of amendment which should appropriately be made to information ....., I consider it proper to take into account the function or purpose for which the document containing the information was created, or is held, by the agency, and the information necessary to enable the agency to properly carry out its functions. I also consider it proper to have regard to any relevant views expressed by the respondent agency as to the appropriate form of amendment, as well as the views expressed by the applicant for amendment."

These comments were made in the context of applying sections 53 to 59 of the Queensland Freedom of Information Act, 1992 which contain provisions broadly in line with section 17. There are some differences between the Queensland Act and the Irish FOI Act. For example the former permits correction or amendment of information which is "inaccurate, incomplete, out-of-date or misleading". Correction or amendment of such information may be made by altering the information or adding an appropriate notation to the information. Despite these differences it seem to me that the approach adopted by the Queensland Information Commissioner, as outlined above, is appropriate in applying section 17.

A number of points flow from this approach. The views of the author of the record may need to be taken into account. The alteration of a record by anyone other than its author creates a certain artificiality about the record. It ceases to be the same record as it was before. Therefore, any alteration should make it clear that the record has been altered as a result of an application under the FOI Act. Because of the evidential value of the altered record, the date of the amendment should be clear on the record.

The evidential value of a record must be recognised in other ways as well. Amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts or with the way the contents of a record explain subsequent actions and decisions of public bodies. Consideration should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record.

In many cases, an alteration of the record which leaves visible the original incomplete, incorrect or misleading information but clearly marked as incomplete, incorrect or misleading and with the addition of information to set the record right, may be most appropriate.

The addition of a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading may be appropriate where more substantial defects exist in the information or where the medium on which the record is stored does not lend itself to alteration. In such cases, care must be taken that the additional record will maintain its link with the original record and that the composite record is the one used for any future consultation.

The word "delete" means "To strike or blot out, obliterate, erase, expunge (written or printed characters)". Thus the third option for amending a record is to strike or blot out, obliterate, erase or expunge the incomplete, incorrect or misleading information. It should be noted that it is the information which is being deleted, not the record itself. However, it is possible that where the contents of a record consist entirely of incomplete, incorrect or misleading information, then the deletion of the information will be equivalent to the destruction of the record.

In my view the deletion of information from a record, on foot of an application under section 17, is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. Without wishing to lay down an inflexible rule on this point, it seems to me that deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect.

Specifics of this case

I now turn to the specifics of this case. Section 17 permits the amendment of personal information. There is no dispute between the parties that the information is personal information about the requester and I accept that this is personal information about Mr and Mrs ABZ.

The Revenue argued that "it is not sufficient for an applicant merely to state that the particular record is incomplete, incorrect or misleading. There must be sufficient evidence provided in support of the claim, which must be capable of being verified." I accept that there is an obligation in section 17(2)(b) which requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application." This does not amount to a requirement to provide a particular level of evidence in all cases. The amount of information provided to support a claim and whether or not it is capable of being verified, and by what means, will vary depending on the type of record at issue. However, the onus is on the applicant to satisfy me that, on the balance of probabilities, the information is incomplete, incorrect or misleading.

In approaching the specific question of amending Mr ACA's estimate of living expenses in the statement of affairs, it seems to me that there are a number of considerations which are relevant.

The first is the fact that the information concerned is an estimate. An estimate of living expenses for the period in question should not be confused with the actual amount of the living expenses. The latter is, in theory at least, capable of being determined precisely - provided Mrs ABZ has kept accurate records. However, there could be many estimates of the living expenses figure, varying in accuracy. It does not seem to me that it is open to a requester in Mrs ABZ's position to demand simply that one estimate be replaced by another. Nor do I think that it is sufficient that she come up now with a more accurate way of making the estimation. I think that, at the very least, it would have to be shown that there was some flaw in the method used to arrive at the original estimate which made the resultant figure unsuitable for the purpose for which the estimate was being made. Examples of the kind of flaws I am thinking of would be an arithmetical error, a serious error in the assumptions underlying the estimate which undermined the basis for the estimate completely or the use of a methodology which was clearly unsuitable for the purpose for which it was being used. If the estimate contained any of these features then it seems to me that Mrs ABZ has a case for saying that the estimate is incorrect and, perhaps, misleading.

In the present case, Mr ACA's methodology was to treat the income tax exemption limits for a married couple for the years 1981/82 to 1990/91 as an approximation of his clients' living expenses for those years. In writing to the Inspector of Taxes he made no secret of the fact that this was his approach. I would have some doubts as to whether such an approach necessarily would give an approximation of the living expenses of a married couple for the years in question since, on the face of it, there is no reason why it should. However, Mr ACA's approach to the estimate has to be understood by reference to the exercise in which he was then engaged. He was adopting a negotiating stance in anticipation of his later meeting with the Inspector of Taxes. At that meeting, the latter put forward his own estimate - which was exactly double Mr ACA's figure. Eventually the case was settled on a compromise basis, apparently without the preparation of further detailed estimates of living expenses for the period. In the light of these facts, I think that the estimate has to be seen for what it is - a figure adopted for negotiation purposes, carrying no particular claims to accuracy. In the circumstances, I am not satisfied that the figure can be said to be incomplete or incorrect. As will be clear from what I have already said, in my view, Mr ACA explained his approach in sufficient detail as to enable a reader of the document to understand the basis on which he arrived at the estimate. In the circumstances, and notwithstanding my doubts about the approach adopted, I am not satisfied that the estimate is misleading.

Before concluding this point I wish to refer to the material submitted by M/s ACC & Co on Mrs ABZ's behalf. That material includes Mrs ABZ's estimate of living expenses for the years in question. This estimate appears to have been prepared in 1999, many years after the period in question. Mrs ABZ has not indicated how she arrived at these figures and I note that she does not claim to be able to substantiate them with records. In the circumstances I am not satisfied that Mrs ABZ's revised figures have any greater claims to accuracy than Mr ACA's figure. I am not satisfied that the information now provided by Mrs ABZ is sufficient to prove that, on the balance of probabilities, Mr ACA's figures were incomplete, incorrect or misleading or that the substitution of her figures for Mr ACA's would make the information complete or correct or not misleading, as appropriate. In the circumstances, I find that Mrs ABZ is not entitled to have the statement of affairs amended, under section 17.

Section 22

The Revenue refused access under section 22(1)(a) of the FOI Act, to all legal advice received by it concerning Mrs ABZ's and her husband's income tax situation. This section provides that the head of a public body shall refuse to grant a request if the record concerned

"would be exempt from production in proceedings in a court on the ground of legal professional privilege."

My Office invited Mrs ABZ, both by letter and at a meeting, to address the question of why this section should not apply to the legal advice to which she was refused access. However, she did not address the issue nor did she withdraw that part of her request for a review. She was referred to my decision in Case Number 98011 (Mr AAI and the Department of Health & Children) (Information Commissioner Decisions Vol. 1 p.51) in which I stated:

"The nub of the issue here is whether the record in question would be exempt from production in a court on the ground of legal professional privilege. In considering this matter, I have to ignore the likelihood or otherwise of court proceedings taking place. The question comes down simply to whether or not the Department would succeed in withholding the document on the ground of legal professional privilege in court proceedings. 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. I am satisfied that these exceptions do not apply here. Accordingly, I must hold that the Department is entitled to claim exemption in respect of this record."

I find that the records to which Mrs ABZ has been refused access contain legal advice sought from the Revenue's legal advisors or are letters seeking such advice. I am satisfied that the Revenue would succeed in withholding these documents on the ground of legal professional privilege in court proceedings. Therefore, the Revenue is obliged to refuse access to these records.

Decision

Having reviewed, under section 34 of the FOI Act, the decision of the Revenue to refuse access to records under section 22(1)(a) and the decision to refuse to amend the statement of affairs, I affirm both decisions.

Information Commissioner

03 August 2000