Whether the Revenue was justified in refusing certain records concerning the use of Section 1003 of the Taxes Consolidation Act 1997 (the TCA) that were created since 1 January 2016

31 October 2018  

Background

On 15 March 2018, the applicant made an FOI request to the Revenue for copies of "all records concerning use of Section 1003 of the Taxes Consolidation Act - the donation of heritage items to the state - created since January 1, 2016".

The Revenue's decision of 9 May 2018 partially granted the request, and relied on various provisions of the FOI Act, including section 37 (personal information), in relation to the refused records or parts of records. The applicant sought an internal review on 12 May 2018 in relation to the Revenue's refusal of records 7-12, 20-23, 48-53, 60, 61, 67, 71-73, 75-77, 87-97, 110-115 and 117-120. He said "I accept the decision in relation to all other records". The Revenue's internal review decision of 1 June 2018 granted partial access to 41 of the records concerned and affirmed its refusal of the other five, again relying on various provisions of the FOI Act including section 37. The applicant sought a review by this Office of the Revenue's decision on records 60, 61, 77, 88, 90, 101, 112 and 117-119 on 13 June 2018.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Revenue and the applicant, including his response to an email sent to him by this Office notifying him of a material issue of relevance to his case. I have had regard also to the provisions of the FOI Act and to the records considered by the Revenue. 

Scope of the Review

This review is confined to whether or not the Revenue has justified its refusal to grant the records (in full or in part) as specified by the applicant in his appeal to this Office, except for record 101. The applicant did not seek an internal review of the Revenue's decision on that record and I therefore have no remit to consider it.

Findings

Of the various exemptions relied on by the Revenue in its decisions, I consider section 37 to be the most relevant and I will consider it at the outset. 

It should be noted that in making my decision, I must comply with section 25(3) of the FOI Act, which 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 I can give of the information and the detail that I can give in my analysis is limited. It is also relevant that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's disclosure to the world at large. 

Section 37 - personal information

Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.

"Personal information" is defined at 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 members of the family, or friends, of the individual, or 
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...

Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including (ii) "information relating to the financial affairs of the individual" and (xiii), "information relating to the property of the individual". It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met. 

The applicant says that State institutions or the donors themselves have placed many of the donors' names in the public domain. He refers to a list published by the Department of Culture, Heritage and the Gaeltacht of donations from 1995 and to details in the Revenue's annual report for 2017. He argues that section 37 is not relevant in the circumstances. 

I accept that certain information regarding the donations is in the public domain. This does not, of itself, mean that section 37 cannot apply. Furthermore, while the records also concern the Revenue's administration of section 1003 of the TCA, this is in the context of dealing with individual applications for tax credits. I am satisfied that the records relate to the financial affairs and property of various identifiable individuals, and that their contents also meet one or both of the definitions of personal information. I find as a matter of fact that the records contain personal information. 

The Revenue says that it is now willing to grant further access to very brief parts of some records. It is not apparent that the applicant wants access to such excerpts. In any event, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 (which is concerned with granting access to records with exempt information redacted) envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

The applicant maintains that "records giving a reasonable amount of transparency on the processes being used could be released without breaching the privacy of the donors involved." He seems to be arguing that details in the records regarding the Revenue's administration of section 1003 can be separated from details concerning the financial affairs and property of the various individuals. I do not consider this to be feasible. I consider from my examination of the records that the details are inextricably linked.

I find the records (as fully or partially withheld at the time of the application to this Office) to be exempt under section 37(1) of the FOI Act. 

Section 37(5) - the public interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld. 

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inthe Rotunda case[The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner[2011] 1 IR 729, [2011] IESC 26, [available onwww.oic.ie]. It is noted that a public interest is "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Although this comment was in the context of another provision of the FOI Act, I consider it relevant to the consideration of public interest tests generally. 

The applicant says that his concerns are not with the individuals who donated material to the State. Rather, he says there should be transparency about the methods used by the Revenue to calculate the values of donated artefacts, which ultimately involves spending taxpayer monies. He also says that he wishes to obtain records indicating whether the Revenue is happy with the operation of the scheme, if it believes that its terms and conditions should be amended, and if it has views on whether the State is getting value for money. 

He refers to various High Court judgments (includingHSE v Information Commissioner[2008] IEHC 298) and the judgment of Fennelly J. in the Rotunda case, which refer to a presumption in favour of the grant of access to records requested under FOI. The applicant also refers to Judge McMahon's further comments inHSE v Information Commissioner[2008] IEHC 298 that exemptions should be interpreted narrowly in order to give effect to the Act's objectives. 

The judgements referred to by the applicant also go on to recognise the requirements of section 22(12)(b) or its previous equivalent (section 34(12)(b)). Section 22(12)(b) provides that refusals shall be presumed not to be justified unless the head of the body shows to the Commissioner's satisfaction that the refusal is justified. This is a case in which I must consider whether the burden of proof has been met by the Revenue.

The applicant also refers to comments in this Office's decision inCase No 98049(Henry Ford & Son Limited and the Office of Public Works) that "openness is a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds." However, that case was concerned with access to records concerning a successful tender. It did not consider records concerning personal information. 

The applicant also says that no harm can arise from the grant of his request and that insufficient importance was attached to the public's right to know how section 1003 of the TCA works in practice. 

Overall, the applicant's arguments reflect the public interest that is recognised by the FOI Act itself, in ensuring the openness, transparency, and accountability of public bodies regarding the performance of their functions. In this particular case, there is a public interest in ensuring openness in and accountability for the Revenue's administration of section 1003 of the TCA, which I accept affects the State's overall taxation revenues. However, this public interest has been served to some extent by the material in the public domain, as referred to by the applicant himself, about the various donations. In this regard, section 1003 requires the Revenue to include in its annual report to the Minister for Finance the titles, description and values of heritage items in respect of which tax relief has been given. In the circumstances, it seems to me that disclosure of the records would further the public interest in favour of the grant of access to only a limited extent. 

On the other hand, both 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). When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. 

The applicant says that there is "no cogent basis" to refuse his request on this basis. He says that situations where a free-standing right to privacy has been recognised relate to inherently private matters such as marital relations, the home and private correspondence and health care information. He maintains that no sensitive personal information has been sought or could be disclosed if his request was granted. 

I cannot disregard the nature of the records under review. As already noted, they concern the administration of the scheme as it stands in the context of applications by identifiable individuals for tax credits and it is not possible to separate what could be described as administrative information from personal information about those individuals. The records are not of a type containing, say, policy-related positions that the Revenue may have developed regarding the scheme in general. It also seems reasonable to me to consider information about one's tax affairs as sensitive, and indeed inherently private, personal information. The FOI Act explicitly requires me to consider the right to privacy in respect of any record containing personal information. I am satisfied that granting access to the records would result in a significant invasion of the privacy of the individuals to whom they relate. 

I find that the weight of the public interest in granting the request for the records is not such that it outweighs the public interest that the rights to privacy of the third parties should be upheld. 

There is no need for me to consider the other exemptions relied on by the Revenue in light of this finding. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Revenue's refusal to fully grant the records under review in this case under section 37(1) of the FOI Act.

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