Whether the Office of the Revenue Commissioners was justified in deciding to refuse the applicant's request for records in relation to a review of his tax affairs in accordance with section 10(1)(c) of the FOI Act.

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

Background

The applicant, in his letter of 8 February 2013, sought a copy of all documentation to include all files, correspondence, pages, notes, file notes, internal memos, reports and recommendations, emails, faxes, determinations and opinions pertaining to and connected with the following:

the review and or investigation by the Revenue Commissioners during the period 1 November 2008 to date (8 February 2013) into his tax affairs etc
the raising and issue of the notes of opinion by (a named Revenue official) pursuant to Section 811 Taxes Consolidation Act 1997 contained in letters dated 19 December 2012 and addressed to him.
the review and or investigation by the Revenue Commissioners and or Revenue Solicitors Office, during the period 1 November 2008 to date (8 February 2013) into his tax affairs which review was initiated during 2008 or 2009 insofar as it relates to or is concerned with the Judicial Review hearing in the case of McNamee .v. Revenue Commissioners (2012) IEHC 500.

On 8 April 2013, the Revenue explained that it was not in a position to fulfil all elements of the request within the extended timeframe of 15 April 2013. It suggested that the applicant reduce his request to the wording of section 2 of his original request.

In response, the applicant informed the Revenue that his primary concern was to obtain the information. He suggested that he was happy to consent to an extension of time to 7 May 2013.

On 10 April 2013, the Revenue wrote to the applicant and informed him that it could not extend the timeframe for his request beyond the deadline date of 15 April 2013. It asked the applicant to confirm, by return, if he was willing to reduce the scope of his request to the wording of section 2 of his original letter.

On 11 April 2013, the applicant confirmed that he would accept copies of the records falling within category 2 of his letter of 8 February 2013 without prejudice to his entitlement to an internal appeal of the refusal to grant his request in respect of the records covered by sections 1 and 3 of his original request.

In response, on 12 April 2013, the Revenue advised the applicant that his letter of 11 April 2013 did not contain an acceptance of the proposed narrowing of the scope of his original request as per its letters of 8 and 10 April 2013. Accordingly, the Revenue informed the applicant that it was refusing his request for the records under section 10(1)(c) of the Act.

On 25 April 2013 the applicant sough an internal review of the decision.

On 13 May 2013, the Revenue affirmed the original decision to refuse the request under section 10(1)(c) of the FOI Acts.

On 30 August 2013, the applicant sought a review of the Revenue's decision from this Office.

Following correspondence from this Office, the Revenue agreed to process the records relevant to (a) point 2 of the applicant's request and (b) records which are specific to the requester, namely the Revenue's working papers relating to the applicant. It continues to contend that parts 1 and 3 of the applicant's request are excessively voluminous. Therefore, the current position, as I see it, is that the Revenue contends the applicant's request is voluminous and the applicant has not confirmed that he accepts that contention. Accordingly, I have decided to conclude this review by issuing a formal binding decision. In carrying out my review, I have had regard to the correspondence between the applicant and the Revenue and to the correspondence between this Office and the Revenue. I have also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to assessing whether the Revenue's refusal of the applicant's request is in accordance with the provisions of the FOI Acts. As the Revenue has processed records in relation to point 2 of the request, my review in this case is confined to an examination of the Revenue's decision in relation to the remaining records, namely points 1 and 3 of the request.

Findings

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Information Commissioner's satisfaction that its decision was justified.

A request may be refused under section 10(1)(c) of the FOI Act if, in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the body. However, section 10(2) provides that a head shall not refuse a request under section 10(1)(c) unless he or she has assisted, or offered to assist, the requester concerned to amend the request that it no longer falls within the parameters of that provision of the FOI Act.

The Revenue explains that there are 18 folders which contain correspondence relating to the applicant. Two of these folders contain information relating only to the applicant. As mentioned above, the applicant's request in relation to these folders has already been processed by the Revenue.

The other 16 folders relate to 26 taxpayers, including the applicant, and the Revenue estimates that these 16 folders contain approximately 3,000 pages. The folders are not indexed. However, as a large number of the records are e-mails, and are held in a specific folder in the Revenue's email system, the content pages of that e-mail folder have been printed and are included with the hard copies of the e-mails in the folders. These pages contain the date, subject matter etc. of the e-mail but generally this information is not specific enough to identify whether they are relevant to a particular taxpayer. Most of the records relate to multiple taxpayers and Revenue has not gone through each of the records in these 16 folders and created an index linking each page / record to particular taxpayers.

This type of index, it explains, is not necessary for the Revenue Commissioners in dealing with queries in relation to working these 26 cases. The only reason to do this would be for Freedom of Information purposes.

The Revenue contends that, as the records are complex and require careful and meticulous consideration, the time required to identify and consider them would be considerable. It considers that the Case Manager would spend 15 working days identifying and considering the papers relating to the request. This would involve assessing the papers in the 16 lever arch folders, deciding if they are relevant to the FOl request and making a decision on releasing, redacting or withholding each record. The Revenue estimates that the support work for the Case Manager for the request would take 7.5 working days. This is the time for photocopying, paginating and checking the documents. In addition, it estimates that the FOl decision maker would spend another 10 working days considering the request, deciding what documents to release, preparing schedules etc. Therefore, the Revenue estimates that the total time involved for the request would be 32.5 working days.

Having regard to the volume of records involved, the need to be meticulous in the consideration of each record - given the subject mater - and the attention to detail required, I am satisfied that it is reasonable to estimate that at least 6 weeks of full time staff resources would have to be diverted to the task of responding to the request. Such a diversion could only be at the expense of other work that such staff normally carry out. Accordingly, I accept that is reasonable for the Revenue to consider that such a task would be a substantial and unreasonable interference with, or disruption of, its work. In such circumstances, I accept that the Revenue was justified, in accordance with the FOI Act, in refusing the request under section 10(1)(c) thereof. I find accordingly.

Section 10(2)
The Revenue told this Office that, before refusing the request on the grounds of section 10(1)(c), it made attempts to negotiate a narrowing of the focus of the request to allow, in so far as possible, the request to be processed without the necessity to refuse it on administrative grounds. In this regard, the Revenue wrote to the applicant on 8 April 2013 inviting him to discuss the parameters of the request and to enter into a discussion in order to determine if it was possible to focus the scope of the request. The applicant however did not avail of this offer and, on 11 April 2013, he wrote stating that he would accept records for one element of the request and requesting an internal review for the other elements. The Revenue did not consider that this was an acceptance of the proposed narrowing of the request and it was only at this point, when it felt that no negotiation was possible, that it refused the request on the grounds of section 10(1)(c). As stated above, since making that decision, the Revenue has also processed the records relevant to part 2 of the applicant's request.

In such circumstances, I accept that the applicant was afforded reasonable assistance to modify his request such that it no longer fell within section 10(1)(c) of the FOI Act but that this offer of assistance did not lead to a reduction in scope to the extent that section 10(1)(c) would no longer apply. Accordingly, I find that section 10(2) has been complied with by the Revenue in this instance.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Revenue Commissioners 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. 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.

Sean Garvey
Senior Investigator