Whether Revenue was justified in its decision to refuse access to certain records in relation to an investigation of the applicant's tax affairs on the basis that the records are exempt under sections 21(1)(a) and 23(1)(a)(i) of the FOI Act.

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

Background

On 10 April 2012 the applicant made an FOI request seeking access to information on his client and the date it was obtained under a project commenced in December 2010 by the Special Projects & Policy Development Branch of Revenue. In its original decision of 9 May 2012 Revenue relied on sections 21(1)(a) and 23(1)(a) of the FOI Act to refuse access to 18 records. In its internal review decision of 15 June 2012 Revenue released one record, numbered 15, and upheld the original decision in regard to the remaining records numbered 1 to 14 and 16 to 18.

The applicant wrote to this Office on 27 June 2012 seeking a review of the Revenue decision. Ms Alison McCulloch, Investigator in this Office, wrote to the applicant on 13 September 2013 outlining her preliminary views on this case and the applicant responded on 17 September 2013.

In reviewing this case I have had regard to the following:

• Revenue's decision on the matter,
• Revenue's communication with this Office,
• the applicant's communications with this Office,
• communications between the applicant and Revenue on the matter,
• the provisions of the FOI Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003,
• the content of the withheld records, provided to this Office by Revenue for the purposes of this review.

Scope of the Review

This review is concerned solely with the question of whether Revenue was justified, in terms of the provisions of the FOI Act, in its decision to refuse access to records numbered 1 to 14 and 16 to 18.

Analysis and Findings

Section 23(1)(a)(i)
Revenue relied on sections 21(1)(a) and 23(1)(a) of the FOI Act to refuse access to the withheld records. Section 23(1)(a)(i) is the more appropriate exemption which provides that a request for access to a record may be refused where to grant access could reasonably be expected to prejudice or impair

(i) "the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,";

According to Revenue, release of these records would reveal the methodologies in use by Revenue in sourcing information and documents in its investigation into the tax affairs of the applicant, and also in similar investigations in many other cases. I would generally accept that an investigator must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in his or her possession should be made available to a party which is the subject of the investigation. Thus, I consider that disclosing information about the steps taken in an investigation, which would not otherwise be made known to the subject thereof in the course of that investigation, could prejudice the procedures being used for the purposes of that investigation. If a party under investigation was to be fully informed at all times of the state of knowledge of the investigating authority, then it would appear to be inevitable that this would impair the investigation of offences, in that they could try to hide, destroy or tamper with evidence, and so prejudice the actual investigation.

I have examined the records provided to this Office by Revenue for the purposes of this review. I have also had regard to Revenue's detailed submission which outlined the reasons for its refusal of the records. It has stressed what it considers to be the sensitivity of this information and has asked for the content of its submission not to be revealed.

The provisions of section 43(3) of the Act require the Commissioner, in the conduct of a review, to take all reasonable precautions to prevent the disclosure of exempt information. This means that this Office must exercise a degree of circumspection in providing information in relation to the investigation to a party to the review. Having regard to those requirements, I agree with Revenue that the information in the submission which it considers sensitive should not be revealed. With due regard to the concerns expressed by Revenue, I can say that, in its submission, it outlined the background to an ongoing Revenue Special Projects Team investigation concerning a large number of companies and said that disclosure of the information and the dates when it was obtained would reveal the methodologies used by Revenue in sourcing the information and documents. Revenue also said that release of these records would outline which sources led to the discovery and identification of this and similar cases.

The tax consultant representing the applicant also represents other clients who have received notification of being investigated by Revenue in similar circumstances. The applicant states that a recent High Court case involving another client of his and Revenue concerns the same investigation as that referred to in this case. He argues that information provided in affidavits in that case details when the investigation began and its methodology using Company Registration Office files.

When Ms McCulloch, put this to Revenue, it responded by saying that the tax consultant represents two clients who have instituted High Court judicial review proceedings against Revenue. It said that in both of those cases officials on behalf of Revenue swore affidavits setting out the broad nature and responsibilities of the work of the Special Projects and Policy Development Branch. Referring to both of these cases, Revenue said that the affidavits (one of which has not been opened in court) did not set out investigation methodologies; rather the affidavit set out details as regards certain transactions and supporting documentation.

Due to the provisions of section 43(3) as set out above, I am restricted in commenting further on this. However, I can say that having examined the affidavits, considered the submission in which Revenue describes its processes and procedures in this investigation and details its reasons as to why the records should not be released, I accept that section 23(1)(a)(i) of the FOI Act applies to the records relating to the project undertaken by the Special Projects & Policy Development Branch of Revenue and I find accordingly.

Section 23(1)(a)(i) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of a record, rather than by it being withheld, in the event that one of three conditions is fulfilled.

The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law...is not authorised by law or contravenes any law". The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law"" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". Having examined the relevant records as held by Revenue I do not consider the records to contain any information that satisfies these conditions. Accordingly, I am satisfied that the public interest is not required to be considered in respect of the withheld records and that the records are exempt from release under section 23(1)(a)(i) of the FOI Act and I find accordingly.

As section 23(1)(a)(i) has been found to apply to these records, there is no need to consider whether section 21(1)(a) applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Revenue in this case.

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. Any such 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.

Sean Garvey
Senior Investigator