Case number: 180017

Whether Revenue was justified in refusing access to records relating to the conversion of vehicles from M1 (passenger vehicles) to N1 (commercial vehicles) under sections 15, 29, 30, 31, 35, 36 and 37 of the FOI Act

10  August 2018 

Background

On 11 September 2017, the applicant made an FOI request to Revenue for the following records created between 1 January 2011 and the date of his request:
  • Minutes of meetings;
  • Correspondence between the National Standards Authority of Ireland (NSAI) and Revenue (including email correspondence);
  • Policy documents;
  • Reports/reviews;
  • All correspondence (including email correspondence) referring to the applicant;
relating to the provisions introduced by Commission Regulation (EU 678/2011) insofar as they relate to the re-categorisation, reclassification and/or conversion of motor vehicles from category M1 (passenger vehicles) to category N1 (commercial vehicles) with two or more rows of seats.
 
On 14 November 2017, Revenue granted the applicant-™s request in part. Revenue identified 149 relevant records which it divided into five schedules (A to E). It released nine records in full and 140 records in part. On 30 November 2017, the applicant requested an internal review of Revenue's decision. 
 
On 21 December 2017, Revenue's internal reviewer varied its original decision. Revenue refused access to minutes, policy documents and reports under section 15(1)(a) of the Act on the basis that these records do not exist or cannot be found after all reasonable steps to locate them have been taken. Revenue located two additional records bringing the total number of records to 151. It released 59 records in full and 92 records in part on the basis that the withheld information is exempt under sections 29 (deliberative process), 30 (functions and negotiations), 31 (legal professional privilege), 35 (confidence), 36 (commercial sensitivity) and 37 (personal information). 
 
On 16 January 2018, 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. This Office also contacted the NSAI and the Road Safety Authority (RSA) to clarify the context of certain content in the records. 
 
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 the applicant and Revenue, to correspondence between Revenue and this Office, to correspondence between the applicant and this Office, to contacts between the NSAI and the RSA and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014. 
 

Scope of the Review

It is helpful here to set out the background to the material involved in this review. Commission Regulation EU 678/2011 establishes a framework for the approval of motor vehicles. The regulations contain criteria for vehicle categorisation. Category M1 vehicles are those designed for the carriage of passengers and comprising no more than eight seats. Category N1 vehicles are those designed for the carriage of goods (commercial vehicles) and weighing less than 3.5 tonnes.
 
Under the Irish tax system, M1 passenger vehicles fall under the category A rate of VRT. N1 vehicles fall under the category B rate of VRT which is lower. Category N1 does not specify the number of seats in the vehicle. Due to concerns that VRT rules in relation to category N vehicles were open to abuse, the Minister for Finance amended the rules in the Finance Act 2017. Section 53 of the Act provides that from 31 July 2018, N1 vehicles with 4 or more seats will be liable to VRT at the category A rate with certain exceptions. 
 
In this case the applicant requested correspondence between Revenue and the NSAI or correspondence referring to the applicant, which relates to the conversion of motor vehicles from category M1 passenger vehicles to category N1 commercial vehicles. I am satisfied that the following correspondence falls outside the scope of the applicant's request as it is between parties other than those referred to in the request or relates to matters other than the conversion of motor vehicles from category M1 to N1: A26-29,  A50,  A54,  A58,  B23,  B36-38,  C1-C8,  D1-2,  D4-5,  D7-8. The scope of this review is confined to the following issues:
 
  • Whether Revenue has justified its decision that section 15(1)(a) of the FOI Act applies to the applicant-™s request insofar as it relates to additional records;
  • Whether Revenue has justified its decision to refuse access to parts of the following records on the basis of sections 29, 30, 31, 35, 36 or 37 of the Act:  A1-6,  A8,  A11-13,  A21,  A25a, A28,  A38,  A48,  A53,  B2,  B6-22,  B24-28,  B30-34,  C10,  D3,  D6,  E3-11, E13-15, E18-19, E22, E25-29. 

 

Preliminary Matters

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
 
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 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.
 
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. Furthermore, it has been recognised that a review under section 34 of the FOI Act isde novowhich means that it is based on the circumstances and the law at the time of the decision. This view of my role has been endorsed by the High Court in the judgment of O-™Caoimh J. inMinister for Education and Science v Information Commissioner[2001] IEHC 116. 
 

Analysis and Findings

Section 15(1)(a) - "Search" issues
 
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case ofMatthew Ryan and Kathleen Ryan v. the Information Commissioner[2002 No. 18 M.C.A.] available on this Office-™s website at www.oic.ie).
 
In submissions to this Office, the applicant states that Revenue ought to hold minutes of meetings, policy documents, reports or reviews which are relevant to his request. This Office put detailed queries to Revenue about searches undertaken to locate all records within the scope of the review. 
 
Revenue states that due to the nature of the records being sought, searches were carried out within VRT Policy and Legislation Branch (VRT Branch) and the Central Vehicle Office (CVO). It states that VRT Branch is responsible for the development of policy in the area of VRT administration and is the main liaison point between Revenue and other Government Departments and their agencies in relation to the registration of vehicles under various type approval and road safety provisions. It states that the CVO is responsible for the classification of all vehicles and maintains a large amount of technical information in order to best determine which class a vehicle falls into. According to Revenue, records were located through searches of specific areas in both offices which I see no need to detail here. 
 
Revenue states that it did not locate minutes of meeting. However, it says many of the records contain information in relation to meetings, including the time and date of meetings, parties in attendance, matters to be discussed and action points arising as a result of meetings. Revenue states that it did not locate policy documents. Again, it says that many of the records concern high level policy discussions in relation to the conversion of motor vehicles from M1 to N1, and also discussions in relation to the registration of particular vehicles. Revenue says that the request for reports/reviews refers to vehicles presented for registration and it says that all reports/reviews held relating to any vehicle presented for registration by the applicant were located in its searches.
 
This Office provided the applicant with an outline of the steps which Revenue says it took to locate relevant records and provided him with an opportunity to make submissions. The applicant did not identify any particular record(s) that he believes existed and were not located. The FOI Acts do not provide for a right of access to records which ought to exist. It should be noted that the fact that one might expect such records to have existed and to have been retained and that their absence might suggest inadequate record keeping practices, is not an issue for review. Further, the FOI Acts do not require an FOI body to create records where such records do not exist or are not held by it. On the basis of the information provided by Revenue, I am satisfied that it has taken reasonable steps to locate relevant records. I find, therefore, that Revenue has justified the application of section 15(1)(a) insofar as any further records within the scope of the request are concerned. 
 
The Records
The records located by Revenue contain chains of email correspondence between Revenue and the NSAI or the RSA together with internal Revenue email correspondence referring to the applicant. The records have been released in part and in many cases Revenue has relied on more than one exemption provision in relation to a single record. The approach I take in this decision is to consider the mandatory exemption provisions first and to then, where necessary, go on to consider the discretionary exemptions. As the email chains often contain various documents and observations some attract more than one exemption.  
 
Section 31(1)(a) - Legal Professional Privilege 
Revenue refused to release information contained in records A13, A21, E5 and E10 on the basis that the withheld information is exempt from release under section 31(1)(a) of the Act. Following queries from this Office, Revenue clarified that the section 31(1)(a) exemption was mistakenly applied to records E5 and E10. I consider those records under section 30 of the Act below. 
 
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) 
The LPP exemption does not contain a public interest balancing test. The Commissioner accepts that, provided the ingredients of the relevant type of LPP are present, the fact that the professional legal advisor concerned is employed as an in house legal advisor does not operate to prevent the client from being able to assert the privilege over the communications at issue. 
 
I am satisfied that the information withheld from records A13 and A21 contains legal advice provided by a Solicitor in the Office of the Revenue Solicitor (RSO). I find that this the information is exempt under section 31(1)(a) of the Act. 
 
Section 36 - Commercially Sensitive Information 
Revenue refused to release information contained in records B6, B8-10, B12-16, B21-22, B24, B27-28, B33, D6, E4, E6, E13 and E19 on the basis that the withheld information is commercially sensitive and is exempt from release under section 36(1)(b) of the Act. 
 
Section 36(1)(b)
Section 36(1)(b) applies to a record containing financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. 
 
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. 
 
Revenue states that the information withheld under section 36 contains data relating to various brands of motor vehicle which was provided by the companies concerned due to Revenue's role as a vehicle registration authority. According to Revenue, the withheld information contains specific data on these vehicles that would not ordinarily be in the public domain and its release could prejudice the competitive position of the companies concerned.
 
The withheld information contains detailed technical data in relation to the manufacture of specific makes and models of vehicle. This data is relevant to the conversion of vehicles from category M1 to category N1. I accept that this type of data could be of use to manufacturers or dealers of competing car brands and could prejudice the competitive position of the companies concerned. I find that section 36(1)(b) applies to information withheld from each of the above records with the exception of records B10, B12, B21 and B22 which do not contain technical data on specific vehicles. I am not satisfied that the information withheld from those records is commercially sensitive and I consider those records under section 30 of the Act below.
 
Section 36(2) provides for various exceptions to section 36(1). I am satisfied that none of those exceptions arise in this case.
 
Section 36(3) - the Public Interest
Section 36(3) provides an exception to 36(1) where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect. On the other hand, the Act also recognises, both in its long title and its individual provisions that there is a significant public interest in government being open and accountable. 
 
The Commissioner takes the view that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things; the first is the positive public interest which is served by disclosure and the second is the harm that might be caused by disclosure. 
 
I am not satisfied that release of the technical information at issue here, which could prejudice the competitive position of the companies involved, would serve to significantly enhance transparency and accountability in relation to Revenue's functions as vehicle registration authority. I consider that the public interest in openness and accountability in relation to Revenue's role in this area has been met, at least to some extent, by the information already released. On balance, I find that the public interest in refusing the withheld information outweighs the public interest in its release. 
 
Section 30(1)(a) - Functions of FOI Bodies 
Revenue refused to release parts of many records under sections 29(1) or 30(1)(a) of the Act. I consider that it is appropriate, based on their content, to consider the following records under section 30(1)(a) of the Act: A1-6, A8, A11-12, A25(a), A38, A48, A53, B7, B10-12, B17, B19-22, B25-26, B30-32, B34, C10, D3, E5, E7-11, E18, E22, E25, E25(a), E26-29.
Section 30(1)(a)
 
Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.
 
When invoking section 30(1)(a), the FOI body should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In examining the merits of an FOI body's view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
 
According to Revenue, the matter of M1 to N1 vehicle conversions has for a long time been a topic of debate both in Revenue and with the NSAI. Revenue says that the whole area of M1 to N1 conversions is fraught with difficulties. It states that while the recent legislative amendment under section 53 of the Finance Act 2017 addressed certain concerns, there are further related issues that need to be addressed. 
 
Revenue says that the records contain an examination of issues in relation to the topic of M1 to N1 conversions and investigations into particular M1 to N1 conversions. It says that the particular investigations have since concluded but as they relate solely to third parties unconnected to the requester, such records have been redacted. The overall situation to which its investigation relates is ongoing. According to Revenue, release of the records would lead to specific details on its operations both as a registration authority and as an enforcement agency becoming public knowledge. It argues that releasing this information into the public domain could compromise its ability to function in these areas.
 
Section 30(1)(a) refers to "tests, examinations, investigations, inquiries or audits". In this case the records contain inquiries and examination of issues encountered by Revenue in relation to registration of modified vehicles as well as investigations into certain vehicles. I am satisfied that the records are the type of record envisaged by section 30(1)(a).  
 
The next question that I must address is whether release of the records could reasonably be expected to cause the harm envisaged. The description of the records which I can give is limited. I can say that they contain details of attempts to inappropriately register vehicles as category N1 and details of the harms that can arise as a result, including safety issues with modified vehicles along with potential loss to the state of VRT and motor tax. It seems to me that it is reasonable to expect, as Revenue claims, that releasing into the public domain details of attempts to circumvent the systems in place to ensure vehicles are appropriately registered could lead to further attempts to inappropriately register vehicles. Disclosure could put those affected by similar investigations in an advantageous position. I am satisfied that release of this detailed, technical information could prejudice Revenue's vehicle registration function and the effectiveness of tests and examinations and/or the procedures and methods employed by Revenue in carrying out this function. I find, therefore, that the information withheld from the above records is exempt under section 30(1)(a) of the Act.
 
Section 30(2) - the Public Interest
The exemption provided for at section 30(1) does not apply where the public interest would, on balance, be better served by granting the request than by refusing it. I must, therefore, go on to consider the public interest test under section 30(2). There is a public interest in FOI bodies operating in an open and transparent manner. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm which might be occasioned by its release.
 
It seems to me that the public interest in openness and transparency in the manner in which Revenue performs its functions has been met to a certain extent by the release of parts of the records under this request. I do not consider that the public interest in the release of information withheld from the above records outweighs, on balance, the public interest in ensuring that Revenue can carry out its functions without prejudice to the effectiveness of tests and examinations used for the conduct thereof. I find, therefore, that section 30(2) does not apply to these records.
 
Section 37 - Personal Information 
Revenue refused to release names and other small amounts of identifying information in some of the above records and the remaining partially released records on the basis that this information is exempt from release under section 37(1) of the Act. 
 
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. For the purposes of the Act, personal information is defined 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 an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal information, without prejudice to the generality of the foregoing definition, including (xiv) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual. 
 
The information withheld from above records includes the names of individuals who are not on the staff of FOI bodies including motor industry representatives, individual car dealers and information in relation to the registration of vehicles by third parties unconnected with the applicant. The information also includes emails sent from or to the third parties and information which would allow for the identification of third parties. I find that this information is exempt under section 37(1) of the Act. Records E8 and E9 contain information received from third parties who raised concerns about the tax treatments of modified vehicles. Revenue withheld this information on the basis of section 35 of the Act. However, I am satisfied that this information, which contains the names of the individuals in question, was given on the understanding that it would be treated by Revenue as confidential and I find that it is exempt under section 37(1) of the Act having regard to the definition of personal information. As I have found that many of these records contain personal information which is exempt under section 37(1), it is necessary to consider section 37(2) and 37(5) of the Act in relation to these records.
 
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 
 
Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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. I do not consider that the release of the information at issue would benefit the third parties to whom it relates, as envisaged by section 37(5)(b) of the Act. 
 
In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case ofThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 ("The Rotunda Judgment") (available atwww.oic.ie). In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).
 
In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy. I am not satisfied that disclosing the names of external consultants, car dealers and others third parties would serve to enhance transparency and accountability in relation to Revenue's vehicle registration functions. I find, therefore, that section 37(5)(a) does not apply to these records.
 
As I have found that Revenue has justified its decision to refuse access  to the records in part under sections 30, 31, 36 and 37 of the Act, there is no need for me to examine the section 29 and 35 claims for exemption.
 

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Revenue's decision:
  • I find that 15(1)(a) of the FOI Act applies to the applicant-™s request insofar as any further records within the scope of the request are concerned; 
  • I find that section 31(1)(a) applies to the withheld parts of records A13, A21;
  • I find that section 36(1)(b) applies to the withheld parts of  records B6, B8-9, B13-16, B24, B27-28, B33, D6, E4, E6, E13 and E19
  • I find that section 30(1)(a) applies to the withheld parts of records A1-6, A8, A11-12, A25(a), A38, A48, A53, B7, B10-12, B17, B19-22, B25-26, B30-32, B34, C10, D3, E5, E7-11, E18, E22, E25, E25(a), E26-29;
  • I find that section 37(1) applies to the identifying information in some of the above records and to the remaining partially released records.
 

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