Whether the Revenue was justified in refusing access to various records relating to a Notice that it issued to the applicant concerning the payment of certain taxes (the Notice)

2 July 2020

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 the Notice, which it had received recently. It also asked for copies of any documents relied upon by the Revenue in compiling that statement of reasons i.e. it essentially sought access to all records that the Revenue relied upon when preparing the Notice.

On 11 July 2019, I annulled the Revenue’s decision on the access to records element of the applicant’s request. I directed it to make a fresh decision in accordance with the provisions of the FOI Act (see Case No OIC-53438-Q7C0V8 (formerly 190189)).

The Revenue and the applicant then corresponded about the breadth of records covered by the request and matters relating to fees. The applicant’s letter to the Revenue of 4 November 2019 further clarified the various categories of records it sought. The relevant part of the Revenue’s decision of 3 December 2019 said that it was refusing access to 14 records under sections 29 (deliberative processes), 30(1)(a) (audits by an FOI body) and 30(1)(c) (negotiations of an FOI body) of the FOI Act.

On 14 December 2019, the applicant sought an internal review of the Revenue’s decision on the 14 records as well as in relation to other matters that I will not mention further because they do not from part of my review. The Revenue’s internal review decision of 24 January 2020 released nine records and affirmed its refusal to grant access to the remainder (records 1-3, 7 and 12) under the provisions of the FOI Act listed above. On 12 February 2020, the applicant applied to this Office for a review of the Revenue’s decision on the five withheld records.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it 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 also had regard to the contents of the withheld records and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Revenue’s decision on records 1-3, 7 and 12 is justified under the FOI Act.

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 in my analysis and reasoning is very limited. Of the various exemptions relied on by the Revenue, I consider section 30(1)(c) to be the most relevant and I will consider it first.

Section 30(1)(c)

Section 30(1)(c) of the FOI Act provides for the refusal of a request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. This exemption does not contain a harm test, but the level of harm that may result from release of the record may be relevant to the consideration of the public interest test at section 30(2).

The records disclose the Revenue’s consideration of various matters relevant to the Notice, which is currently the subject of legal proceedings. The Revenue says that there is always a possibility that it and the applicant may enter settlement negotiations prior to, during or after the completion of the proceedings. It says that while the records are relevant to the Notice, it would also rely on their contents in any such negotiations. Essentially, its position is that releasing the records at this point in time would disclose the negotiating positions it would take.

The applicant’s position generally is that the records relate to it and that it has a material interest in their contents. It says that it prepared records 1-3 and 7. It says that the Revenue has admitted that it has annotated these records but that it has not indicated when this happened. It says that the four records relate to periods preceding that for which the Notice issued and that the Revenue has released other records of the same type as record 7.

It says that it does not understand how annotations to its historic tax documents, which it says are not the subject of any outstanding tax assessment, could realistically be said to contain information that falls for exemption under section 30(1)(c). It says that its understanding of the Revenue’s position could be facilitated if the Revenue could identify the dates on which the annotations were made.

The fact that the records relate to the applicant or that the Revenue has released records similar to record 7 does not prevent the Revenue from exercising its discretion to rely on section 30(1)(c) in relation to the withheld records. Furthermore, this Office has no role in examining, or requiring the Revenue to disclose the date(s) on which it annotated records 1-3 and 7. The Investigator put queries to the Revenue in relation to the content and context of the records, including annotations made on materials submitted by the applicant. The Revenue’s position is that all of the withheld records, including the annotations by Revenue officials, were, in the first instance, relevant to its preparation of the Notice. I have no reason to dispute this and I have no powers to require the Revenue to justify how it analysed the applicant’s tax affairs.

Settlements are often negotiated between taxpayers and the Revenue. I accept the Revenue’s position that, as matters stand, there is a reasonable prospect of negotiations taking place between it and the applicant in this case. I also accept its position that while the records were relevant to its preparation of the Notice, they also contain details of positions that it would take in any such negotiations that might take place. I find that section 30(1)(c) applies to the records.

Section 30(2)

Section 30(2) provides that subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

On the matter of where the public interest lies, I 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] 1 IR 729, [2011] IESC 26) (the 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] (the F.P. case) which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

The applicant says that there is considerable public interest in the legal proceedings given the quantum of the liability involved and the importance of tax certainty to all taxpayers. It refers to my consideration of section 30(1)(c) in my decision in Case No 180443, in which I directed the release of certain financial information. It says that the decision highlights the importance of the public interest in ensuring a public body’s openness and accountability. It says that this outweighs the public interest in enabling the Revenue to protect its own negotiation position with a taxpayer who is entirely disadvantaged by being unable to secure access to its own tax returns so that it can ascertain how the Revenue dealt with them once filed.

It is clear from the Rotunda and F.P. cases that I cannot take account of any private interests that the applicant has in getting access to the records. In addition, I do not accept that providing tax certainty for taxpayers, or any wish that the general public may have to be fully informed of matters relating to the ongoing litigation, comprise public interests on the lines of that described in the Rotunda judgment. Furthermore, the quantum of the liability involved, of itself, is not sufficient to justify this Office directing the Revenue to grant access to the records in the public interest.

There is a public interest, which is recognised by the FOI Act, in establishing that the Revenue carried out its functions, including in relation to the applicant, in a way that was consistent with the principles of natural and constitutional justice. This is the same public interest that I identified as relevant in Case No 180443. In that case, I also noted that section 11(3) of the Act requires public bodies performing functions under the Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision making. I consider that the public interest in granting the applicant’s request is entitled to significant weight in this case and I accept that it would be served by granting access to the withheld records.

However, each case is determined on its own merits and has regard to the relevant facts and circumstances. I do not consider my decision to direct the release of the financial information in Case No 180443 to create any precedent that is binding on me. In particular, the circumstances of the two cases are different.

In Case No 180443, information dating from 2007 had been withheld from a final Part V (social housing) agreement made between a local authority and a developer regarding a particular development. The financial information included the purchase price and VAT. I considered that such information represented the outcome of a negotiation. I did not accept that its release necessarily disclosed a position taken by the Council during such negotiations. I found that section 30(1)(c) did not apply in the first instance. I also noted that the Council had not identified any specific harm that could result from release of the information, such as the disclosure of negotiating positions which could reasonably be expected to prejudice current or future negotiations or cause some other harm. I also found it difficult to accept that the release of such historic information could significantly impact any current or future negotiations, even if the Council had specifically identified these. 

I note the applicant’s comments about the historic nature of some of the records in this case. However, as already set out, it is the Revenue’s position that its analysis of those records was relevant to the Notice and therefore to any future negotiations that may result. I have no reason not to accept that the contents of the records are relevant at this point in time.

Section 30(1)(c) reflects a public interest in preserving the ability of FOI bodies to negotiate without premature disclosure of positions or other material that they would rely on in those negotiations. I accept that disclosure of the Revenue’s positions in any negotiations into which it may enter with the applicant would hinder the Revenue’s ability to achieve the most appropriate outcomes for the Revenue and the taxpayer/Exchequer. In such circumstances, I consider the public interest in refusing the request to be of very significant weight.

Having given the matter careful consideration, I find that the public interest would, on balance, be better served by refusing than by granting the FOI request concerned.

In the circumstances there is no need for me to consider the other exemptions relied on by the Revenue in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Revenue’s refusal of the records on the basis that they are exempt under section 30(1)(c) 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