Whether the Revenue was justified in refusing to grant the applicant’s request for records relating to a tax assessment

11 July 2019

Background

The applicant's letter to the Revenue of 17 January 2019 sought a statement of reasons under section 10 of the FOI Act and access to records under section 11. In short, the applicant asked for a statement of reasons for the Revenue's decision to issue a Notice of Amended Assessment (the Notice) to it for payment of certain taxes. It also asked for copies of any documents relied upon by the Revenue in compiling that statement of reasons. It seems to me that the latter part of the request essentially seeks access to all records that the Revenue relied upon when preparing the Notice.

The Revenue's decision of 20 February 2019 said that its letter to the applicants of 30 October 2018 explained the reasons for issuing the Notice. It said that it deemed the letter to be the equivalent of a statement of reasons in this case. It also said that all internal Revenue documentation relating to its audit is exempt under various provisions of the FOI Act which it described in its decision.

On 14 March 2019, the applicant sought an internal review of the Revenue's refusal to grant access to the internal documentation. It also said that it should be given a schedule of the records concerned. The Revenue's internal review decision of 5 April 2019 affirmed its decision on the statement of reasons. It also referred to section 10(2)(a) of the FOI Act, which provides that nothing in section 10 shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record. The internal reviewer said that he did not agree with the original decision maker's decision to exempt records using the exemptions he had relied on because there is no requirement under section 10 to release records that would fall to be exempt. He said that the requested records fall within the definition of exempt records stated in section 10(2) and that a schedule of records was not necessary in such circumstances.

On 19 April 2019, this Office received the applicant's application for a review of the Revenue'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 Revenue and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of Review

This review is confined to whether or not the Revenue's refusal to grant the section 11 element of the applicant's FOI request (i.e. for access to certain records) is justified.

Findings

The Revenue's email to this Office of 4 June 2019 says that it considers the section 11 element of this request to be the same as another FOI request made by the applicant, which it refused under section 15(1)(c) of the FOI Act (voluminous request). This Office’s Investigator told the Revenue that the two requests concerned differ and that it appears to have misinterpreted the scope of this request. She said that the correspondence also suggests that the Revenue's refusal of the records was a general one rather than a decision on the contents of individual records.

In response, the Revenue says that it only considered the section 10 element of the request and omitted to look at the section 11 element. It apologises for its oversight. Although this explanation does not seem to be in keeping with what is said in the Revenue’s decisions, it clearly has not considered the individual requested records and decided on them in accordance with the provisions of the FOI Act.

The Information Commissioner is an independent reviewer of decisions made by FOI bodies. It is not appropriate for him to consider, as a first instance decision maker, whether the applicant’s request should be granted. In the circumstances, the most appropriate decision for me to make is to annul the Revenue’s decision on the section 11 element of the applicant’s request and remit it for fresh consideration by the Revenue in line with the requirements of the FOI Act. The effect of this is that the Revenue is required to make a new, first instance, decision on the requested records in accordance with the provisions of the FOI Act. The normal timelines within the Act apply and the applicant will have a right to an internal review and review by this Office if it is not satisfied with the Revenue’s new decision.

I am pleased to note the Revenue says that it is willing to consider the request afresh. I should say that I am making a decision in this case for clarity because it is not entirely clear from the applicant’s correspondence whether it is happy to withdraw the review application and accept the Revenue’s offer to consider the request afresh or whether it wants me to direct the Revenue to do so.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Revenue’s decision on the section 11 (access to records) element of the applicant’s request. In the circumstances of this case, a remittal is appropriate. I direct the Revenue to undertake a fresh decision making process on that part of the request, and to inform the applicant of the outcome in accordance with the requirements of the FOI Act.

In view of the Revenue’s willingness to consider the request afresh, I presume that it will start the fresh decision making process as soon as possible rather than waiting for the statutory deadline for the making of an appeal to expire.

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