Case Number: 160309

Whether Revenue was justified in refusing the applicant's request for records relating to him on the basis that the records requested are exempt from release under sections 29(1)(a), 29(1)(b), 30(1)(a), and 31(1)(a) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 1 April 2016, the applicant made an FOI request to Revenue for access to copies of all files and documents held by Revenue in respect of him. On 18 May 2016, Revenue granted the applicant's request in part. Revenue identified 192 records as being relevant to the request. It released 156 records in full. It refused access in full or in part to the remaining 36 records on the basis that they are exempt under sections 30(1)(a) or 31(1)(a) of the Act. On 11 June 2016, the applicant requested an internal review of Revenue's decision. On 4 July 2016, Revenue varied its original decision and released an additional 13 records to the applicant in full or in part. Revenue also relied on section 29(1)(a) and section 29(1)(b) of the Act in refusing access to certain records. On 27 July 2016, the applicant applied to this Office for a review of Revenue's decision.

Both the applicant and Revenue made submissions in the course of this review. I have decided to conclude this review by way of a formal binding decision.

In conducting this review, I have had regard to correspondence between Revenue and the applicant, to correspondence between Revenue and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of the Review

Following correspondence with this Office, Revenue agreed to part release record 187 (pages 2-5) and record 190 (pages 2-3). Those parts of records 187 and 190 are excluded from the scope of this review. Of the 23 records refused in full or in part, eight records were created after the date of the applicant's request and fall outside the scope of this review. The scope of this review is confined to the following question:

• Whether Revenue has justified its decision to refuse access in full or in part to records 14, 165, 177, 178, 181, 182, 183, 184, 185, 186, 187 (page 1), 188, 189, 190 (page 1) and 192 on the basis of sections 29(1)(a), 29(1)(b), 30(1)(a) or 31(1)(a) of the Act;

Preliminary Matters

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional the paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. Therefore the onus is on Revenue to satisfy the Commissioner that its decision to refuse access to the records was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege
Revenue has relied on section 31(1)(a) in refusing access to records 178, 182, 183, 184, 187, 188, 189, 190 and 192. Revenue also relied on sections 29 and 30 in refusing access records 183 and 184. However, as section 31(1)(a) is a mandatory exemption, I will consider its applicability first. Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

• Confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
• Confidential communications made between the client and a professional legal advisor or the professional legal advisor and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege)

There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice, and communications in furtherance of a criminal offence. The LPP exemption contains no public interest balancing test.

Revenue states that the records refused under section 31(1)(a) contain correspondence between Revenue and its external solicitors concerning enforcement proceedings and internal documents created for the dominant purpose of contemplated litigation. Revenue has confirmed in writing to this Office that litigation is ongoing in this case. It submits, therefore, that advice privilege and/or litigation privilege apply to these records.

For litigation privilege to apply, there must be contemplated or pending litigation and the records must have been created for the dominant purpose of that contemplated or pending litigation. Records 178, 182, 187, 188, 189, 190 and 192 contain correspondence between Revenue and its external solicitors. The correspondence refers to the legal proceedings and contains legal advice in relation to gathering relevant information and reviewing the defence and counterclaim. I am satisfied that these records contain confidential communications and the dominant purpose for their creation is the preparation for contemplated or pending litigation. I find that these records are exempt under section 31(1)(a) of the Act on the basis of litigation privilege.

Record 183 contains an internal Revenue communication. This record refers to certain requirements in relation to proceeding with litigation. This Office accepts that in certain circumstances litigation privilege may attach to internal communications, provided that the dominant purpose for their creation is contemplated or pending litigation. I am satisfied that record 183 was created for the dominant purpose of contemplated or pending litigation and is exempt under section 31(1)(a) of the Act on the basis of litigation privilege.

Records 184 also contains an internal Revenue communication which is headed "for consideration with regard to prosecution." Records 14 (pages 1-2), 181, and 186 (pages 1-2) contain identical copies of this record. Records 14 (pages 3-4), 165, 177, 185 and 186 (page 3) also refer to material concerning a proposed prosecution. It is not clear to me why Revenue did not invoke section 31(1)(a) in relation to these records; instead access was refused under the discretionary provisions of section 29(1)(a) and 30(1)(a) of the Act. I am satisfied that the dominant purpose for the creation of these records is in connection with contemplated litigation and that they are, therefore, exempt under section 31(1)(a) of the Act. As I have found that these records are exempt under section 31(1)(a), I do not consider that it is necessary to determine whether they are also exempt under the discretionary exemptions claimed - section 29(1)(a) or section 30(1)(a).

Decision

In summary, I affirm Revenue's decision. I find that section 31(1)(a) of the FOI Act applies to the records to which access was refused in full or in part by Revenue.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator