31 May 2018

Whether Revenue was justified in refusing access to certain records relating to the applicants' tax affairs under sections 30(1)(a), 31(1)(a), 32(1)(a)(i), 33(3)(c)(i), 35(1)(a), 35(1)(b), 37(1), and/or 41(1)(a) of the FOI Act

Background

In a request dated 14 March 2017, the applicants through their solicitors sought access to three categories of records pertaining to their tax affairs, including, at item 2 of the request, all records received from the Treasury, Isle of Man Government, pursuant to a request for information under the Tax Information Exchange Agreement (TIEA) between Ireland and the Isle of Man.  Revenue's International Tax Division (ITD) and Investigations and Prosecutions Division (IPD) responded to the request separately on 11 May 2017.  In its decision, ITD identified 20 records as relevant to item 2 of the request, which it refused in full under sections 35(1)(a) and 41(1)(a) of the FOI Act.  IPD identified 321 records as relevant to the request in general, which it granted in part but refused in larger part under sections 30(1)(a), 31(1)(a), 32(1)(a)(i), and 35(1)(a) of the FOI Act.  A further decision was issued by Revenue's Collector General's Office on 15 May 2017 in which it granted access in full to 129 records that it had located.

On 26 May 2017, the applicants applied for an internal review of Revenue's decisions refusing access to the requested records.  On 16 June 2017, ITD affirmed its original decision to refuse access to item 2 of the request in full.  Separately on 16 June 2017, IPD granted access to additional records relevant to the applicants' request but affirmed its refusal to grant access to the remaining records held by the Division.

On 27 October 2017, the applicants applied to this Office for a review of Revenue's decisions.  In the course of the review, Revenue granted access to additional records, but new claims for exemption were also made.  It was also discovered that some of the records identified by IPD as relevant actually post-dated the original request and were therefore outside the scope of the review.  These matters were brought to the applicants' attention on 27 March 2018.  In response, the applicants suggested that "the list of records produced by Revenue is incomplete in a manner which is significant" and expressed scepticism of the manner in which relevant information was reviewed for FOI purposes.  However, no evidence was provided that substantiated any claim that relevant information had been concealed from this Office during the review.  As this Office explained to the applicants, this case involves a voluminous amount of records.  The schedules do not describe the records in a detailed manner and in many instances documents are grouped together, but there is no basis for finding that Revenue failed to identify any relevant records to this Office.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by Revenue and the applicants.  I have also examined the ITD and IPD records forwarded to my Office for the purposes of my review.  I note that certain records of communication from the Isle of Man were not included in the records forwarded to my Office because of the strict confidentiality required by the Isle of Man under the TIEA that it regards as applicable to the communications, but a description of the records concerned and other relevant information about the communications were provided in written submissions.  In addition, a meeting was held between officials from my Office and Revenue in which the TIEA process with the Isle of Man was discussed in detail.  Subsequent to this meeting, further evidence was provided from the Isle of Man to confirm that it regards its communications in relation to the TIEA as strictly confidential.  I am satisfied that sufficient evidence of the confidentiality of the relevant Isle of Man communications has been presented and that it is therefore unnecessary for me to examine the contents of the communications concerned directly.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The records to which Revenue has granted access and the records which post-date the original request do not form part of my review.  This includes ITD record 10, a copy of which has been released as part of IPD record 25.   I also note that certain records (e.g., ITD records 6 & 20; IPD records 1, 23, 40, and 41) include information about other taxpayers unrelated to the applicants; the parts of such records that are about other taxpayers are also outside the scope of the request and thus this review.  Although the schedules provided by Revenue are very general in nature, I adopt the numbering system used by Revenue for the purposes of this review.  Accordingly, my review in this case is concerned solely with the question of whether Revenue was justified in refusing access to the following:

• ITD records numbered 1 to 9 and 11 to 20 insofar as they relate to the applicants (although listed separately, records 3 and 4 were attachments to record 2, and records 5, 8, 11-19 were attachments to record 1);
• the files received from the Isle of Man in July 2016 (as referenced in IPD records 213-217);
• IPD records numbered 1, 11, 14, 17, 19-21, 23-24, 26-27, 31-33, 35-42, 44-151, 153-155, 157, 159-161, 164-165, 168, 171, 173, 177-185, 211, 213-217, 219, 226-231, 233, 237-261, 263-268, 270-273 (in full apart from the information about other taxpayers unrelated to the applicants).
• IPD records numbered 4, 5, 274 (in part).

For the sake of clarity, I note that this Office has no role in adjudicating on how FOI bodies carry out their functions generally or in investigating complaints against FOI bodies.

Preliminary Matters

Before setting out my findings, there are some preliminary points I wish to make.

The first point to note is that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.  This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions.

A related point to make is that, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only.  When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58).  The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

In addition, I should point out that, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt.  This constraint means that, in the present case, the extent of the reasons that I can give is limited.

Lastly, I wish to explain the approach of this Office to the granting of access to parts of records.  Section 18 of the FOI 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, this Office takes that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."  In this case, Revenue has refused access to the records concerned under sections 30(1)(a), 31(1)(a), 32(1)(a)(i), 33(3)(c)(i), 35(1)(a), 35(1)(b), 37(1), and/or 41(1)(a) of the FOI Act.  I will start by addressing Revenue's claims regarding information communicated in confidence to any person in or outside of the State.

Section 33(3)(c)(i) 
Section 33(3)(c)(i) of the FOI Act is a mandatory exemption that applies to a record that "contains information communicated in confidence to any person in or outside the State from any person in or outside the State (including any law enforcement agency) and relating to a matter referred to in subsection (1), or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence".  One of the matters referred to in subsection (1) of the section 33(1) of the Act is the international relations of the State.  Section 33(3) does not require a harm test, nor is it subject to a public interest override which would allow for the consideration of whether the public interest would be served by release.

As noted above, the schedules provided by Revenue are very general in nature.  I am satisfied that the records are described in the manner provided in the schedules due to the large volume of records involved and for the purpose of not revealing exempt material, as is appropriate, but the approach taken nevertheless resulted in a significant amount of confusion for my staff as well as the applicants during the review.  In order to provide adequate reasons for my decision, I must explain, however, that included among the ITD records are documents that do not in fact fall within item 2 of the request.  On the other hand, some records of communication to and from the Isle of Man are included among the IPD records.  Some, but not all, of the information at issue that originated in the Isle of Man was received pursuant to requests made under the TIEA.  Article 7 of the TIEA provides that all information provided and received by the competent authorities of the parties to the agreement shall be kept confidential.  The TIEA with the Isle of Man, as with similar arrangements with other States, has been given the force of law under section 826(1B) of the Taxes Consolidation Acts 1997, as amended (see also S.I. No. 459 of 2008).  Thus, national as well as international law prohibits the release of information received under the TIEA, which is why section 41(1)(a) of the FOI Act is relevant to the records concerned.  Section 41(1)(a) is a mandatory exemption provision that applies where the disclosure of a record is prohibited by an enactment not specified in the Third Schedule to the FOI Act.

However, as indicated, not all of the ITD records nor all of the Isle of Man communications included among the IPD records consist of information that was received pursuant to a request made under the TIEA.  I note, for instance, that all documentation received on foot of a TIEA request should be stamped or otherwise certified, according to the Guide to Exchange of Information available on Revenue's website.  However, some of the communications concerned are of a less formal nature than the exchanges of information that were made under the strict TIEA process, though they involve competent authorities and relate to the TIEA process.  Moreover, certain other exchanges of information were made pursuant to other legal arrangements.  Based on the submissions made by Revenue, including the evidence provided from the Isle of Man, and having regard to the contents of the records that I have examined, I accept that the communications with competent authorities outside the State were made in confidence and that they relate to the international relations of the State insofar as they involve an international agreement such as a TIEA.  In the circumstances, I am satisfied that section 33(3)(c)(i) applies to the following:

• ITD records 1, 2, 3, 4, 5, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20
• IPD records 23, 24, 26, 27, 41, 182-185, 251, 254, 267, and the files received from the Isle of Man in July 2016.

As I have found that section 33(3)(c)(i) applies to the records above, I do not consider it necessary to determine whether section 41(1)(a) of the FOI Act or any of the other exemptions claimed may also apply.  The confidential exchanges of information that were made pursuant to other legal arrangements will be addressed below in relation to section 32(1)(a)(i) of the FOI Act.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and 
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser 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).

In previous decisions, the Commissioner has accepted that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  The Commissioner has adopted this approach having regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

Based on my examination of the records, I accept that the following records contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice:  IPD records 110, 126-128, 131-133, 142, 149-151, 153, 159, 161, 164-165, 237, 247, 248, 250, 253, 263-266, 268, and 270-274.

I note that in an updated schedule released to the applicants and copied to this Office on 20 March 2017, Revenue indicated for the first time that it was invoking section 31(1)(a) in relation to all of the IPD records remaining at issue.  However, the basis for the new claims of legal professional privilege is not apparent other than in relation to records 126, 226, 228-231, 248, 250, 253, and 259-261.  Record 126 consists of communications with the Deputy Revenue Solicitor that form part of a request for legal advice from counsel.  It is apparent from the contents that records 226, 228-231, 248, 250, 253, 257, 259-261 consist of confidential communications made for the sole or dominant purpose of preparing for the appeal that had been made by the applicants to the Tax Appeals Commission.  This Office accepts that litigation encompasses not alone court proceedings but also proceedings before tribunals exercising judicial functions, such as the Appeal Commissioners; I therefore accept that records 226, 228-231, 248, 250, 253, 257, 259-261 qualify for litigation privilege.  As indicated above, I accept that records 248, 250, and 253 also qualify for legal advice privilege.  I am otherwise not satisfied that the additional claims of privilege are justified.  For the sake of clarity, I find that section 31(1)(a) applies to the following:

• IPD records 110, 126-128, 131-133, 142, 149-151, 153, 159, 161, 164-165, 226, 228-231, 237, 247, 248, 250, 253, 257, 259-261, 263-266, 268, and 270-274.

Section 32(1)(a)(i)

Revenue has claimed that sections 30(1)(a) and 32(1)(a)(i) apply to the remaining records at issue apart from IPD records 4 and 5.  It has also claimed that section 35(1)(a) applies in certain instances.  As the records concerned involve Revenue's law enforcement functions, I consider that section 32(1)(a)(i) is the most relevant exemption to address in the circumstances.  Section 32(1)(a)(i) provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair 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 such matters.  Where an FOI body relies on section 32(1)(a), it should, firstly, 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.  To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how or why releasing the record concerned could reasonably be expected to cause the harm which it has identified.

The records at issue in this case involve a lengthy and complicated investigation into alleged cross-border tax avoidance or tax evasion where the issue of domicile is also in dispute.  As noted above, some of the records at issue consist of confidential exchanges of information with competent authorities from outside the State pursuant to legal arrangements other than the TIEA process.  I accept that disclosure of such information under FOI, where there are no restrictions on its use, could reasonably be expected to result in a loss of trust or confidence in Revenue officials among other law enforcement officials and thus to undermine Revenue's ability to obtain similar such information in future.  I also accept that these and other records at issue provide meaningful insight into the methodology and sources used by Revenue in carrying out an investigation into cross-border activities, including the relevant considerations taken into account in preparing a request for information from authorities in other jurisdictions.

I note that some of the methods and sources of investigation are not, of themselves, of a confidential nature or may otherwise seem obvious and predictable to someone with knowledge of the tax laws insofar as they relate to offshore accounts and the issue of domicile; nevertheless, I accept that such investigative techniques are not common knowledge.  As this Office has acknowledged in previous cases, records which may not appear sensitive in isolation may be harmful when taken as a whole.  In this case, Revenue has explained that the release of the records concerned would reveal details of the enquiries and tests that it carries out to gather investigative material and verify information provided by taxpayers, thus allowing taxpayers to alter their behaviour and activities in a manner that would facilitate tax avoidance and tax evasion.  Having regard to the contents of the records both individually and as a whole, I accept that Revenue's concerns are well-founded.

Moreover, I note that the records also reveal meaningful information about the strategies and analysis employed by Revenue in a complicated investigation such as the one involving the applicants.  In Case 99232, which is available on our website www.oic.ie, this Office accepted that records showing how Revenue carried out its investigations in one case could reasonably be expected to prejudice the effectiveness of other investigations (see also Case 030624).  I agree with this approach and am satisfied that disclosure of information about the methodology, sources, strategies, and analysis used by Revenue in this case to the "world at large" under FOI could reasonably be expected to facilitate tax avoidance and evasion activities and thus to prejudice or impair the prevention, detection or investigation of offences or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters.  Accordingly, I find that section 32(1)(a)(i) applies to the following:

• ITD records 6, 7, and 9;
• IPD records 1, 11, 14, 17, 19-21, 31-33, 35-36, 37, 38-39, 40, 42, 44-109, 111-125, 129-130, 134-141, 143-148, 154-155, 157, 160, 168, 171, 173, 177-181, 211, 213-217, 219, 227, 233, 238, 239-246, 249, 252, 255, 256, and 258.

The public interest test in section 32(3) is limited to certain circumstances specified in paragraph (a)(i) or (a)(ii).  I am satisfied that none of these circumstances apply.  Accordingly, as I find that Revenue was justified in refusing access to the records concerned under section 32(1)(a)(i) of the Act, it is unnecessary for me to consider whether section 30(1)(a) or section 35(1)(a) may also apply.

Other
The other records at issue are records 4 and 5, which have been released subject to the redaction of details relating to other private individuals associated with the applicants' business.  For the sake of clarity, I note that I am satisfied that Revenue does not hold any additional relevant records apart from those which have been identified above as falling within the scope of the review.

Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details fourteen  specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual" and "(iii) information relating to the employment or employment history of the individual".  I note that record 4 includes information from the Company Registration Office (CRO) that may be publicly available, though it also includes PPSNs that would not normally be in the public domain.  However, the release of unredacted versions of records 4 and 5 would reveal that the individuals concerned were associated with a Revenue investigation into alleged cross border tax evasion.  In any event, the Supreme Court has determined that information coming within any of the categories included in the definition is personal information and need not also come within part (a) or (b).  I find therefore that the details relating to the other private individuals qualify as personal information within the meaning of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.  However, I am satisfied that none of those circumstances arises in this case in relation to the third party individual concerned.  Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or 
(b) the grant of the information would be to the benefit of the person to whom the information relates.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the individuals to whom it relates, I find that section 37(5)(b) does not apply.  In considering the public interest test contained in section 37(5)(a), it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case").  It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.  In this case, I find that the public interest in granting access to the redacted information does not outweigh the public interest in upholding the right to privacy of the individuals concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue's decision in this case on the grounds set out above.

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