Whether the Department was justified in refusing to grant access to some records prepared for the Minister or the Minister's office relating to the closure of the "Single Malt" tax avoidance mechanism

19 June 2019

Background

The applicant's FOI request to the Department of 19 December 2018 sought copies of any records prepared for the Minister or the Minister's office relating to the closure of the "Single Malt" tax avoidance mechanism from 1 January 2018.

The Department's decision of 21 January 2019 concerned seven records, of which it granted access to records 3, 4, 5 and 7 in full. It granted partial access to record 6 and refused access to records 1 and 2. It relied on sections 29 (deliberative process), 30 (functions and negotiations of an FOI body), 33 (security, defence and international relations) and 40 (financial and economic interests of the State) in relation to the refused details. 

The applicant sought an internal review of the Department's decision on 2 February 2019. The Department's internal review decision of 25 February 2019 affirmed its refusal in respect of the withheld records. It relied on sections 29, 30(1)(a) (inquiries carried out by an FOI body), 30(1)(c) (negotiations of an FOI body or the Government), 33(1)(d) (international relations of the State), 33(2)(b)(ii) (communications with another government) and 40(1)(a) (national economy or financial interests of the State). On 28 February 2019, the applicant sought a review by this Office of the Department's decision. 

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 the above exchanges and to correspondence between this Office, the Department and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the Department's refusal to grant access to the withheld records is justified. 

Findings

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. Accordingly, the extent to which I can describe the records and the Department's submission in my analysis and reasoning is limited. 

I will consider section 33(1)(d) first. 

Section 33(1)(d) - International Relations

Section 33(1)(d) of the FOI Act provides that a request may be refused if access to the record sought could reasonably be expected to affect adversely the international relations of the State. It is not subject to a public interest test. 

The Department says that while the Revenue Commissioners and the Maltese authorities have arrived at a Competent Authority Agreement, there remains a window until at least November 2019 when the changes come into effect. It is a matter of public record that the November date applies generally but that companies incorporated before 1 January 2015 will not be affected until after December 2020 by the change in residence status. It says that while there has been speculation as to how the "Single Malt" process works, it has not revealed the level of its own knowledge of the process or commented on its effectiveness. It says that disclosing such information by granting access to the records at this point in time will facilitate exploitation of the structure. It also says that disclosing its analysis of the workings of other countries' tax structures could negatively impact on Ireland's international relations with such countries. 

The applicant says that it is farcical to suggest that divulging how the "Single Malt" scheme works would further facilitate tax avoidance. It says that details of the scheme are already known to every major accountancy firm and multinational operating in Ireland, whom in its opinion initially spotted the potential for tax avoidance rather than the Department. It says that the Department's failures allowed the scheme to exist in the first place and that the public is entitled to know how Ireland's tax system works, particularly in relation to its use for tax avoidance. It says that it is not a matter of what the Department or government of the day might find embarrassing. It also argues that if the scheme is legal, then the information should be in the public domain since it merely concerns the application of the law and that there cannot be any adverse effect from disclosing how our tax system is lawfully used. It says that, if the Department is saying that the scheme is illegal, which it has not suggested before, then the records should be disclosed particularly when details of the scheme are already widely known amongst professionals. 

It is not this Office's role to determine whether the scheme is legal or to direct that records should be released on that basis. I have no reason to reject the Department's position that it has not previously commented on or revealed its detailed understanding of and views on the scheme. Disclosure of records under FOI is equivalent to placing them in the public domain. As the applicant is aware, this Office could only give limited details about the Department's submission because of the requirements of section 25(3). However, having examined the records, I can say that the Department's submissions addressed, among other things, the potential for relationships with other countries to be adversely affected if the content of these records was released. I accept that placing the records in the public domain at this point in time could facilitate exploitation of the structure. I accept that such an outcome, in addition to the disclosure of the Department's views on the tax codes of other countries, could reasonably be expected to affect adversely the State's international relations. I find that section 33(1)(d) applies. In making this finding, I should make it clear that I consider the interests of the State to be broader than the interests of either a department of State or the government of the day. While the applicant's submission stressed the public interest in release, once I have found this particular exemption to apply, I have no jurisdiction to consider or direct the release of the records based on a public interest override since this is not provided for in the Act.  

Given my findings under section 33(1)(d), it is not necessary for me to consider the other exemptions claimed. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant access to records 1 and 2 and the remainder of record 6 under section 33(1)(d) 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