Whether Revenue was justified in refusing access to some information contained in records concerning its audit of the applicant and his company on the basis that release of that information would prejudice Revenue's audit process

Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

 

Background

On 4 June 2014, the applicant made an FOI request for all documentation concerning the Revenue audits into his own tax affairs and the tax affairs of his company, including all "internal Revenue memoranda between the various sections of the Revenue, notes of telephone conversations and meetings", all correspondence between Revenue and the applicant's accountant, and a "copy of any certificates of the Revenue Commissioners which gives authorisation to the Revenue Auditor which allows him to exercise the powers conferred under the relevant provisions" of various pieces of legislation.

On 4 July 2014, Revenue issued a decision identifying 59 records relating to the request. It released 55 records in full, and withheld the remaining four records, relying on section 21(1)(a) to refuse records 2, 3, and 58, and relying on section 23(1)(a)(viii) to refuse record 1. On 22 July 2014, the applicant sought an internal review in relation to records 2 and 3. Revenue's internal review decision of 13 August 2014 varied the original decision and granted access to eight pages of record 2, and upheld the original decision in respect of the remainder, relying also on section 21(1)(c) in relation to record 3. On 4 February 2015, the applicant sought a review by this Office of Revenue's internal review decision.

During the course of this review, and following consultation with this Office, Revenue decided to administratively release the vast majority of records 2 and 3, redacting information at 2-1, 3-1, and 3-5. Having examined the information redacted at 3-5, I am satisfied that the information is outside the scope of the applicant's request and thus does not fall to be considered by this Office.

The applicant in this case has referred to the company involved as his company. All references to the "applicant" in this decision may be read as references to the applicant or the company, as appropriate. I will refer in this decision to 2-1 of record 2, and 3-1 of record 3, simply as 2-1 and 3-1 respectively.

I note that Mr Benjamin O'Gorman, Investigating Officer, contacted the applicant on 14 July 2015 and informed him of his view that Revenue was justified in its decision to refuse to release the remaining information. I have now decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between Revenue and the applicant as set out above; to the records at issue, copies of which were sent to this Office for the purposes of the review; to details of various contacts between this Office and Revenue and to details of various contacts between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

As outlined above, having examined the information redacted at 3-5, I am satisfied that the information is outside the scope of this review.

Therefore, the scope of this review is confined to whether or not Revenue was justified in refusing access in full to information redacted at 2-1 and 3-1, on the basis that the information is exempt from release under the provisions of the FOI Act.

Preliminary Matters

Many of the issues the applicant raised in his submission to this Office related to the way in which Revenue was conducting its investigations into his tax affairs. As this Office has no role in examining the administrative actions of public bodies, this review will have no regard to such matters. It is important to note that section 8(4) of the FOI Act, as amended, provides that, subject to the other provisions of the Act, decision makers are not to have regard to any reasons as to why the applicant is seeking the withheld records.

It is also relevant to note that the release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the review.

Analysis and Findings

Before dealing with the exemptions claimed by Revenue, it is important for me to explain that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. These constraints mean that, in the present case, the extent of the reasons that I can give is limited, as is the description I am able to give of the information at issue.

Revenue has sought to withhold the information at 2-1 under sections 21(1)(a), 21(1)(c), and upon appeal to this Office, section 23(1)(a)(iv), and to withhold the information at 3-1 under section 21(1)(a). As Revenue has relied on section 21(1)(a) to redact the information at both 2-1 and 3-1, I will consider the application of this section first.

Section 21(1)(a)
Section 21(1)(a) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof. Section 21(1) is subject to a public interest test under section 21(2).

In arriving at a decision to claim a section 21 exemption, a decision maker must 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. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable. However, to satisfy the Commissioner of the reasonableness of the decision, it is essential that the decision maker explain how and why he or she believes release of these particular records will give rise to the harm envisaged.

I accept that a Revenue investigation is an investigation or audit of the kind envisaged by section 21(1)(a). Revenue's decisions referred to the application of section 21(1)(a) in very general terms.

The information at issue at 2-1 is a handwritten note relating to Revenue's investigation into the applicant's tax affairs. The information at issue at 3-1 is the contents of an internal Revenue email. I have carefully considered the contents of both pieces of information. I have also considered Revenue's submissions and its arguments as to why the two pieces of information should be refused. In particular, I have had regard to Revenue's arguments in relation to the harm it anticipates release of the two pieces of information would have on the effectiveness of its investigations and audits.

In submissions to this Office, Revenue contends that the release of the information at issue in this case would undermine its position in an appeal by the applicant by revealing possible arguments and positions adopted that may form part of Revenue's case. Revenue also contends that the release of the information could divulge procedures and methods employed by it in carrying out its work and that it may affect the outcome of other similar cases if its methodologies and risk assessment processes are revealed.

I accept that, in the circumstances, Revenue's expectation that release of the information at issue at 2-1 and 3-1 could prejudice the effectiveness of the investigation or the audit is reasonable. I find that Revenue's decision to rely on this section to refuse access to the information at issue is correct in the circumstances.

I am required under section 21(2) to consider whether the public interest would, on balance, be better served by granting rather than refusing the request. While persons who are subject to tax investigation have a clear private interest in the release of records which may hold information on the detailed reasons and processes pertaining to those investigations, the public interest in the release of such records is significantly less clear. In my view, there is no public interest in the release of this information which outweighs the public interest that public bodies, particularly a body such as Revenue whose function impacts directly on matters involving public money, are able to carry out their statutory functions in the most efficient and effective way possible, without prejudice to the lawful methods employed. This is particularly true in the case of tax audits and investigations, which have the specific and direct purpose of protecting public finances. Furthermore, in my view any public interest in openness and accountability by Revenue in its audit of the applicant's tax affairs has been met to a considerable extent through the release of the majority of records at issue in this case. Accordingly, I find that the information at 2-1 and the information at 3-1 should not be released further to section 21(2) of the FOI Act.

Having found section 21(1)(a) to apply to both 2-1 and 3-1, I do not consider it necessary to consider the application of section 21(1)(c), and section 23(1)(a)(iv) of the Act to 2-1.

Decision

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

 

Elizabeth Dolan
Senior Investigator