Whether Revenue was justified in refusing the applicant’s request for records for a specified period under section 15(1)(i) on the ground that the records were already released to her

14 July 2020

Background

This case has its background in a previous FOI request made by the applicant, in which her nephew, on her behalf, requested all records relating to her tax affairs from the period 2 April 2014 to 21 May 2018. In response to that request, on 20 July 2018, Revenue released a number of records. The applicant sought an internal review of that decision, following which Revenue released further records with its internal review decision dated 6 September 2018.

On 10 June 2019, the applicant sought a review by this Office of Revenue’s decision on her FOI request. As the application fell outside the six month time limit for making such applications, it was not accepted by this Office.

The applicant made a fresh request to Revenue on 28 June 2019, in which she requested all documentation and communications related to her tax affairs for the period from 1 March 2018 to the date of the request. Part of the period for which records were sought overlapped with the period captured by the earlier request, namely 1 March 2018 to 20 May 2018.

In a decision dated 21 August 2019, Revenue informed the applicant that it had searched for records from 21 May 2018 onwards as records created before that date had been released on foot of the previous request. It released 13 records, with some redactions made under section 37 of the FOI Act.

The applicant sought an internal review of Revenue’s decision, specifically on the ground that it had not considered her request for records relating to the period 1 March 2018 to 20 May 2018. On 26 September 2019, Revenue affirmed its original decision in respect of the 13 records released. It refused the applicant’s request for the period in question under section 15(1)(i) on the ground that the records for that period had already been released to her.

In a letter this Office received on 26 March 2020, the applicant sought a review of Revenue’s decision. She argued that she had not received all records for the period from 1 March 2018 to 20 May 2018 as claimed by Revenue. Specifically, she argued that other records should exist for the period that would explain fundamental differences between the contents of a draft report of an external reviewer and the contents of the final report.

I have now completed my review of Revenue's decision. In conducting the review, I have had regard to the correspondence between Revenue and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and Revenue on the matter.

Scope of Review

The scope of this review is concerned solely with whether Revenue was justified in refusing access to relevant records for the period 1 March 2018 to 20 May 2018 under section 15(1)(i) of the FOI Act on the ground that the records sought were previously released to the applicant on foot of her earlier request.

Analysis and Findings

Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. For the section to apply, the public body should be able to show that (i) the records sought were already released and (ii) they are available to the requester.

As I have outlined above, the applicant argued that she had not received all relevant records for the period from 1 March 2018 to 2 May 2018. In her application for review, she said one of the records she received on foot of the earlier request was an internal Revenue email of 13 March 2018 seeking approval to issue what was described as a draft report of an external reviewer. A copy of the draft report (record 35.1) was attached to that email. She said record 37 was a copy of the final report that was issued and that it was altered significantly when compared with the draft report.

The applicant argued that no records had been provided to her that would explain how or why the report and conclusions of the external reviewer were fundamentally altered or who was consulted or involved in making the alterations.  She argued that no correspondence or audit trail was released to her as to how the significant alterations occurred.

During the course of the review, Ms Whelan of this Office contacted Revenue in an effort to ascertain whether searches for relevant records had been undertaken. In response, Revenue stated that it had not searched for records for the period 1 March 2018 to 20 May 2018 on the basis that such records were captured by the previous request. Ms Whelan explained that the searches conducted by Revenue on foot of the earlier request would be relevant, given that it incorporated the period at issue. However, Revenue indicated that no such searches had taken place.

In essence, Revenue refused the applicant’s request for records for the period 1 March 2018 to 20 May 2018 on the ground that such records were already released to her without having considered whether all relevant records for the period had been released.

It appears that the applicant did not identify her specific concerns relating to the report of the external reviewer in any of her correspondence with Revenue. This is unfortunate as had she done so, it seems to me that Revenue would have been in a position to give more detailed consideration to the applicant’s request for records for the overlapping period. It would have been in a position to consider whether all relevant records for the period had been identified and considered for release, based on the applicant’s specific concerns.

Nevertheless, while I have some sympathy for Revenue in relation to the approach it took to the request, the current position is that the applicant has argued that she has not received all relevant records for the period in question. The question before me is whether Revenue was justified in refusing that part of the request under section 15(1)(i) on the ground that it has already released the records to her.

The applicant has not argued that the records released to her on foot of the earlier request are not available to her. As such, I find that Revenue was, indeed, justified in refusing access to those records released on foot of the earlier request under section 15(1)(i). However, I find that it was not justified in refusing records for the entire period of 1 March 2018 to 20 May 2018 under section 15(1)(i) as it has not shown that all relevant records were released to her. It seems to me that the most appropriate course of action to take is to annul that part of Revenue’s decision and to direct it to consider afresh the applicant’s request for records for the period from 1 March 2018 to 20 May 2018, other than those already released on foot of her earlier request. The normal rights of internal review and review by this Office will apply to the new decision.

I should add that I have given no consideration in this review to whether or not the records the applicant believes ought to exist actually exist. It is a matter for Revenue, when considering the request afresh, to ensure that it takes all reasonable steps to ascertain the whereabouts of relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Revenue in this case. While I find that it was justified in refusing, under section 15(1)(i), access to records for the period 1 March 2018 to 20 May 2018 that had previously been released to the applicant, I find that it was not justified in refusing all relevant records for the entire period under that section. I direct Revenue to consider afresh the applicant’s request for records for the period from 1 March 2018 to 20 May 2018, other than those already released on foot of her earlier request

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.

Stephen Rafferty

Senior Investigator