Whether Revenue was justified in refusing access to records relating to a partnership under sections 15(1)(a), 30(1), 35(1), 37(1) and 42(m) of the FOI Act

27 November 2020

Background

The applicant is a partnership and acted through its solicitors in this matter. All references in this decision to engagements with the applicant should be taken to include engagements with its solicitors. On 27 September 2019, the applicant made an FOI request to Revenue for “all data held by the Revenue Commissioners in respect of the partnership from 1 January 2016 to date”. Revenue issued its decision in two parts, on 11 and 24 October 2019. It granted access to some records and refused access to the remaining records on the ground that they were exempt under section 37(1) of the FOI Act.

On 10 December 2019, the applicant applied for an internal review of Revenue’s decision. Revenue issued its internal review decision in two parts, on 23 and 24 January 2020. It identified further records within the scope of the applicant’s FOI request. It granted access to some further records and refused access to the remaining records on the grounds that they were exempt under sections 30(1), 37(1) and 42(m) of the FOI Act. On 10 February 2020, the applicants applied to this Office for a review of Revenue's decision.

In conducting my review, I have had regard to the correspondence between the applicant and Revenue as outlined above and to the correspondence between this Office and both parties, and the content of the records that were provided to this Office by Revenue for the purposes of this review.

Finally, I should note that the two individuals in the partnership itself made similar FOI requests to Revenue, which have also come to me on application for review. My decisions in those cases are numbered OIC-62285-K0C3M3 and OIC-62286-B3R7C9.

Scope of this Review

During the review process, Revenue released further information to the applicant. That information therefore falls outside the scope of this review. Furthermore, Revenue claimed section 35 applies to certain records. The applicant also maintains that further records within the scope of the FOI request should exist.

Accordingly, the question for me is whether the records are exempt under sections 30(1), 35, 37(1) and 42(m) of the FOI Act and whether section 15(1)(a) applies. I have adopted the numbering used in Revenue’s schedules of records in referring to the records at issue.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Thirdly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest. I consider the public interest under section 37 below.

Finally, 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.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

Section 15(1)(a) provides that a request for access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I note that Revenue says that it did not apply section 15(1)(a). However, in both the request for an internal review and application for review, the applicant refers to the existence of further records, relating to requests for information from financial institutions and minutes of meetings with accountants. I therefore consider it appropriate to consider section 15(1)(a), as I take the view that the FOI body’s decision, insofar as the information said to exist is concerned, is effectively a refusal under section 15(1)(a).

I should mention that the applicant refers to a Revenue methodology for requesting information from financial institutions and evidence of that process being followed. For the avoidance of doubt, I must emphasise that I have no role in determining whether Revenue followed its own methodology in requesting information from financial institutions. I am only concerned with whether Revenue was justified in refusing access to information sought under the provisions of the FOI Act.

The role of this Office in cases such as this is to review the decision of the FOI body and decide whether that decision was justified. This Office has regard to the relevant information available and assesses the adequacy of the searches conducted by the FOI body. The relevant information in “search” cases generally consists of the steps taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. This Office considers all the relevant information and decides whether the decision that section 15(1)(a) applies was justified. It is not normally the function of the Commissioner to search for records when reviewing a decision under section 15(1)(a).

During the review process, the Investigator questioned Revenue about its record management practices and the steps taken to search for the information sought by the applicant. Revenue says two divisions processed this FOI request: the Business Division and the Collector General Division. In the Business Division, the relevant member of her staff and her manager reviewed the request. They searched a number of Revenue systems. At internal review stage, they conducted a further search for records, including the manual audit file, original FOI file and the Revenue systems. They identified further records. They also searched the Revenue files of the two individuals in the partnership for records relating solely to the partnership. The Collector General Division searched their records, identified four records and released them in full.

With specific regard to the meetings with accountants, Revenue says that it partially-released records relating to those meetings to the applicants. The records concerned are Records 9, 14, 15 and 16. I have examined these records and see that they contain information about meetings with agents. For completeness, I note that the existence of records relating to requests for information from financial institutions relates to FOI requests by the two individuals in the partnership. Those are the subject of the two separate reviews noted above.

This Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Section 15(1)(a) requires an FOI body to take all reasonable steps to locate relevant records. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found.

It would have been preferable if Revenue had identified all the relevant records at the first instance decision-making stage of the original FOI request. Nonetheless, in the circumstances, I am satisfied that Revenue has now taken reasonable steps to search for the records sought. I find that Revenue was justified in refusing access to further records under section 15(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 42(m) – Restriction of Act

Having regard to the content of certain information in Records 12, 15, 17 and 41, I consider it appropriate to examine section 42(m) first. Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.

In essence, this section provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been provided in confidence and the third is that the information must relate to the enforcement or administration of the law.

Having regard to the information concerned, I am satisfied that its disclosure could reasonably be expected to reveal, whether directly or indirectly, the identity/ies of the person(s) who provided information. I find that the first requirement is met.

The second requirement is that the information was provided in confidence. I cannot disclose the content of the information or the circumstances in which it was obtained by Revenue, but having regard to Revenue’s submissions, I am satisfied that the information at issue was provided in confidence in this case.

The third requirement is that the information provided relates to the enforcement or administration of the law. The information provided in this case relates to Revenue’s administration of the law.  I am satisfied that the third requirement is met.

Having found that the three requirements are met, I find that section 42(m)(i) the FOI Act applies to these records and Revenue was justified in refusing access to them under section 42(m). Given this finding, I do not need to consider the exemptions claimed under sections 30 and 35.

Section 37 - Personal information

Section 37(1)

Revenue claims the exemption provided at section 37(1) of the FOI Act over the remaining information. Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include “(i) information relating to the educational, medical, psychiatric or psychological history of the individual” and “(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose”.

As I noted at the outset, the applicant in this case is a partnership. The individuals in the partnership made FOI requests for information relating to themselves, which are the subject of separate reviews by this Office. The remaining information in this review comprises the names, electronic and postal addresses, reference numbers and medical information relating to various individuals, including but not limited to the individuals in the partnership. I am satisfied that section 37(1) applies to this information. This finding is subject to other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to weighing the public interest, it is also 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 (“Rotunda 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 The Minister for Communications case, the Supreme Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, but did not disturb the guidance that it previously gave in the Rotunda Case.  Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.

As noted above, I am required to disregard the applicant’s motives for seeking access to the records. Therefore, I can only take into account the purpose for which the applicant seeks the information in so far as it reflects a true public interest factor in favour of releasing the information. In correspondence with this Office, the applicant says that it seeks access to all documents that Revenue may rely upon in dealings with it (the details of which I do not need to recite here) and that it should have all information at its disposal.

I accept that there is a public interest in persons who may be affected by actions of Revenue being informed of the manner in which it carries out its functions relating to its investigations and of the basis upon which it makes decisions on foot of such investigations. As noted above, the remaining information comprises the names, electronic and postal addresses, reference numbers and medical information relating to various individuals, including but not limited to the individuals in the partnership. I do not believe that release of this information would offer insight into how Revenue carries out its functions, in the public interest.

In this case, I am satisfied that the applicant has expressed, in essence, a private interest in release of the remaining information. I can appreciate the importance it may attach to accessing the remaining information. However, the above judgments make clear that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld.

On the other hand, 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. Also, the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. It is noteworthy that unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Accordingly, 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.  It is also relevant to note that release of the information must effectively be regarded as release to the world at large.

I find no relevant public interest in granting access to the remaining information that, on balance outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing the remaining information. In the circumstances, I find that section 37(5)(a) does not apply. I find that Revenue was justified in refusing access to the remaining information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm Revenue's decision under sections 15(1)(a), 37(1) and 42(m) of the FOI Act, as outlined 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.

 

Deirdre McGoldrick

Senior Investigator