The Commissioner affirmed the Revenue's revised position and directed that the details at issue should be withheld from release.

Case Summary

The Revenue's initial decision on the request (made further to section 29 of the FOI Act) was that records disclosing the Applicant's identity as donor to the Irish Museum of Modern Art of the painting " Il Trovatore" by Giorgio de Chirico, while exempt under section 28 of the FOI Act, should be released in the public interest. However, in the course of this Office's review, the Revenue reconsidered its position, and submitted that the details concerned should not be released in the public interest. This Office's review is concerned with the sole issue of whether or not the Revenue's revised position in this regard is justified.

Date of Decision: 16.07.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

On 26 January 2009 the original requester sought records from Revenue relating to a donation to the Irish Museum of Modern Art (IMMA), under Section 1003 of the Taxes Consolidation Act, 1997 (the scheme), of "Il Trovatore", a painting by Giorgio de Chirico valued at €500,000.

The scheme entitles donors to avail of a credit against certain tax liabilities, based on the valuation of their donation to the national collections of important heritage items. The scheme requires that details of the donations, including their valuation (and thereby the amount of money for which the donor is entitled to claim tax relief), are published. Such publication has taken place in this case. Unlike certain other schemes for tax relief, however, section 1003 does not require disclosure of the identity of the donor of the heritage item (the beneficiary of the tax credit).

Included in the 31 records deemed by the Revenue to be relevant to the request were a number of records containing the name and other identifying details of the donor of the painting concerned. Although considering such details to comprise the donor's personal information, the Revenue initially formed the view that the public interest in identifying the donor of a painting, who subsequently became entitled to a substantial tax credit, outweighed the public interest in upholding that donor's right to privacy. The donor was notified of the Revenue's view in accordance with section 29 of the FOI Act, and was given an opportunity to make a submission to Revenue on the matter. Following receipt of a submission made by the donor's legal advisors, dated 6 March 2009, the Revenue nonetheless decided that the public interest warranted release of the details concerned. It advised the donor of this decision on 11 March 2009.

On 26 March 2009, the donor's solicitors made its application to this Office for a review of the Revenue's decision. In the course of my Office's review, having reconsidered its assessment of the public interest test, the Revenue submitted that the details at issue should not be released.

In conducting my review, I have had regard to the relevant portions of the submissions made to this Office by the applicant's solicitors, as well as the relevant portions of its submission to the Revenue of 6 March 2009. I have also had regard to the relevant portions of the submissions made to this Office by the Revenue, dated 8 May and 6 November 2009, and to correspondence between Mr Sean Garvey, Senior Investigator in my Office and the above parties. I have also had regard to the views expressed to this Office by the original requester, to copies of the relevant records (which were provided to my Office for the purposes of this review) and to the provisions of the FOI Act.

It should be noted that my review is not concerned with the question of whether there is, or should be, consistency between the disclosure requirements of various Revenue schemes by which tax relief may be claimed. Furthermore, while I am aware that the Revenue has previously disclosed upon request details of donations made under section 1003, including the names of donors, I understand that such disclosure has been with the consent of the donors concerned. As consent is not forthcoming in this case, such previous disclosure by the Revenue is irrelevant to my consideration in the case at hand.

The donor will be referred to as necessary in the remainder of this decision as "the Applicant", "he or she" or "him or her" (any further reference to which may be taken as including reference to his or her solicitors, where appropriate). Finally, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of my review to prevent disclosure of information contained in an exempt record.

Conducted in accordance with section 34(2) of the FOI Act by Emily O'Reilly, Information Commissioner.

Scope of the Review

Records At Issue

Of the 31 records the Revenue considered relevant to the request, my decision is concerned with the seven records the subject of its consultation with the applicant further to section 29 of the FOI Act (records 1, 4, 8, 15, 27, 28 and 29). The applicant has consented to the release of certain excerpts of these records that, of themselves, do not divulge his or her personal information. It seems to me that the Revenue may now proceed with the release of such details, and accordingly, my review will not consider them further. Thus, my review is solely concerned with whether the Revenue's revised position on the remaining excerpts of these seven records (i.e. those details that would disclose the identity of the applicant as donor of the painting "Il Trovatore" and as recipient of the ensuing potential tax credit of €500,000) is in accordance with the provisions of the FOI Act. No other details are at issue.

For avoidance of doubt, it should be noted that the Revenue's decision of 11 March 2009 fully withheld two documents that it considered to amount to personal information about the applicant, which it did not consider to warrant release in the public interest. The Revenue also released eight further records in an edited format, on the grounds that the deleted information was not relevant to the request. The Revenue's decision in respect of these ten records does not form part of this review, given that these records were not subject to any section 29 consultation.

Issues Under Review

It should be noted that, in a review of a decision to which section 29 applies, there are limits to the provisions of the FOI Act that I may consider. Section 29 requires consultation with a third party where any one or more of three specific exemptions is considered by the public body to be relevant to the records at issue (i.e. sections 26, 27, or 28), but where it considers the public interest warrants release of the records nonetheless. Thus, any ensuing review by me of such a decision cannot consider whether the records concerned could be exempt under any other provision of the FOI Act. It follows that I cannot consider whether or not release of the details at issue in this case could reasonably be expected to impact on the safety or security of persons and property, in which case section 23 of the FOI Act may apply, as has been argued by the applicant. Such an argument may be relevant to my consideration of the public interest, however (see below).

Sections 26 and 27 have not been cited in this case and I do not intend to consider them, accordingly (although the confidentiality of one's dealings with the Revenue has been alluded to by the applicant in correspondence with this Office, I would not consider it necessary for me to consider the application of section 26 in any event, given the findings below). It is not clear to me whether or not the original requester disputes the Revenue's finding that the details at issue comprise the personal information of the applicant and are thus exempt under section 28(1) in the first instance, which provides for the refusal of a record containing the personal information of a person or persons other than a requester. As no arguments have been made by the original requester to this effect, I will assume that this finding is not under appeal (although, if it were, I would accept that details pertaining to one's tax affairs would amount to one's personal information and would be exempt under section 28(1) of the FOI Act).

Section 28(5)(a) provides that where a record is exempt under section 28(1), it can still be released if "the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". Thus, my review is confined to the sole issue of whether or not the public interest in release of the personal information at issue in this case outweighs the public interest that such information be withheld.

I should point out that section 34(12)(a) of the Act provides that, in a review conducted of a decision to grant a request to which section 29 applies, the public body's decision shall be presumed to be justified unless the person to whom the information relates "shows to the satisfaction of the Commissioner that the decision was not justified".Thus, generally speaking, the onus would be on the applicant - as the person objecting to a public body's decision to release information in the public interest - to show that, on balance, the public interest would not be better served by granting access to the details concerned. However, in this case the Revenue has revised its initial decision that the details at issue should be released in the public interest. In this regard, it should also be noted that the decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office.

Submissions

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Findings

The requester contends that the public interest in the State foregoing public money through provision by Revenue of a tax credit justifies overriding the applicant's right to privacy in relation to his or her identity as the donor of the painting and recipient of the tax credit.

For its part, the Revenue agrees that there is a need to ensure openness, transparency and accountability in the operation of the scheme and to ensure openness about public expenditure. While it notes that there is "no legal requirement to publish the names of the donors", it argues, however, that "openness, accountability and transparency are adequately achieved by the publication of the nature, names and values of the items donated." Similarly, the applicant contends that publication of details required by the scheme, and the release of the details in the records at issue to which it consented in the course of this review, means that the public interest in Revenue's accountability for its use of public money has been met. The applicant further argues that release of his or her identity is not necessary to further satisfy that public interest.

It is relevant that the terms of the scheme are in the public domain, which seems to me adequately to serve the public interest in knowing how the scheme operates. It is also relevant that the Revenue has already published details of the valuation of the painting, and thereby the amount of the ensuing tax credit. It seems to me that it would therefore be possible for interested individuals to assess whether a reasonable valuation was given to the painting at issue in order to determine if the ensuing tax credit was appropriate and fair. Accordingly, I consider that the public interests in openness and accountability in relation to the disbursement of State monies (albeit by means of a tax credit in this case), and in ensuring that the scheme is being properly and fairly operated by the Revenue, have been met.

It could be argued that the scale of the applicant's donation and the ensuing tax relief set it aside from other forms of tax credit, such as those due in respect of medical expenses. However, I have no reason to find that the rights to privacy of taxpayers who can choose to avail of particular tax credit schemes should be any less than the rights to privacy of taxpayers who, for whatever reason, are not able to avail of those schemes. Finally, while I accept that there may be a general public interest in enabling individuals to exercise their rights under the FOI Act in order to obtain the maximum information available about a particular issue, it seems to me that this interest of itself is not sufficient to warrant the release of the details at issue.

On the other hand, I note and accept the applicant's argument that the FOI Act recognises the constitutionally recognised right to privacy, both in its Long Title (which makes it clear that the release of records under FOI must be consistent with "the right to privacy") and in the language of section 28. In the case of section 28(5)(a), it is clear that privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

Leaving aside the applicant's arguments as to the implications of release for his or her personal security, I accept that the disclosure of his or her identity and thus release of details of his or her private interests and tax affairs would result in an invasion of his or her privacy. I do not see how the public interests identified by the applicant (which I have already found to have been adequately served by those details that are already in the public domain) will be further served by knowledge of these details. As no further public interest grounds have been identified on which any invasion of the applicant's privacy could be justified, I thus have no reason to direct the release of the details at issue. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the revised position of the Revenue in this case and direct that the details concerning the applicant's identity as the donor to IMMA of the painting "Il Trovatore" be withheld from release.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

16 July 2010