Whether Revenue was justified in refusing access to various records relating to the applicants

9 October 2020

Background

The applicants’ FOI request of 19 March 2019 sought access to various records relating to the Trust from 1975 to date, including:

• records preceding an agreement entered into between Revenue and the Trust,
• records concerning particular notices of assessment and
• records concerning a settlement agreement entered into between the Trust and Her Majesty’s Revenue and Customs.

On 17 May 2019, Revenue issued a decision in two parts. The decision of the Large Cases Division – High Wealth Individuals (LCD) concerned 108 records. It released 101 records in full and three in part. It relied on sections 29(1) (deliberative process), 31(1)(a) (legal professional privilege) and 37(1) (personal information) of the FOI Act in relation to the withheld records and parts of records. A separate decision issued by the Revenue Solicitor’s Office (RSO) covered 16 records, all of which it withheld under sections 31(1)(a) and 35(1)(a) of the FOI Act, which relate to confidential information.

On 13 June 2019, the applicants sought an internal review of Revenue’s decision. On 17 June 2019, and in reference to correspondence from the applicants dated 28 May 2019, the LCD issued what purported to be a further decision regarding 31 additional records. This purported decision released seven of those records in full and four in part. It relied on sections 30(1)(c) (negotiations of an FOI body), 35(1)(b) (duty of confidence) and 37 of the FOI Act in relation to the remaining withheld records and parts of records. Otherwise, it appears that Revenue did not issue an internal review decision until October 2019.

The RSO’s internal review decision of 14 October 2019 stated that the description of two particular records on the schedule to its original decision had been inserted in error i.e. that the records do not exist. It indicated that it had found 12 further records covered by the request. It released seven of these records in full, stating that the other five were exempt under section 31(1)(a). It also said that it was refusing access to other records that had already been released under the LCD’s decision of 17 May 2019. In respect of all other records, it affirmed its earlier decision. The LCD’s internal review decision of 15 October 2019 affirmed the decision of 17 May 2019 and the purported further decision of 17 June 2019.

The applicants’ FOI request of 15 August 2019 sought access to the same records requested on 19 March 2019 insofar as they are relevant to the two Trustees (who are spouses and one of whom is deceased). The applicants said that they were making this request because Revenue had withheld certain records containing third party information even though they had engaged in extensive correspondence with Revenue regarding the Trust over the years and it had never questioned whether they were all separate parties. They noted that Revenue’s decisions on the first request did not include any records from 2013 or 2014 or before 2012 and questioned the adequacy of Revenue’s general searches for records covered by it.

The LCD’s decision of 19 September 2019 covered nine records, of which it released two in full and one in part. It refused access to the remaining records and parts of records under sections 35(1)(b) and 37(1) of the FOI Act. The applicants sought an internal review on 9 October 2019, including in relation to Revenue’s searches for records covered by the request. The LCD’s internal review decision of 30 October 2019 granted further access to some of the records. It said that section 35(1)(b) no longer applied but that it was instead relying on sections 29(1), 30(1)(a) (audits by an FOI body) and 30(1)(c) as well as section 37(1) and that it held no further records relating to the request.

On 8 April 2020, the applicants applied to this Office for a review of Revenue’s decisions. Case Number OIC-68147-Z6R3F5 is concerned with the request of 19 March 2019 and Case Number OIC-68148-Z0Z9B1 is concerned with the request of 15 August 2019.

Delays arose in commencing the reviews due to Revenue’s difficulty in providing this Office with copies of the records the subject of its decisions because of changes in working arrangements further to the Covid-19 pandemic. I have now completed my reviews in accordance with section 22(2) of the FOI Act and I have decided to conclude them by way of a formal, binding composite decision. In carrying out my review, I have had regard to correspondence between Revenue, the applicants and this Office. I have also had regard to the provisions of the FOI Act and the records the subject of Revenue’s decisions.

Scope of the Review

The scope of this review is confined to whether Revenue’s decisions on the requests is justified under the provisions of the FOI Act.

Findings

This Office’s Investigator invited Revenue to make submissions in relation to its searches for records covered by the request and on its reliance on the various provisions of the FOI Act referred to above. The Investigator noted that the withheld records 21-23 as listed in the RSO’s internal review decision contained a significant number of unscheduled documents i.e. record 21 (170 pages), record 22 (six folders totalling over 1,000 pages) and record 23 (192 pages).

A number of matters arise from Revenue’s submission to this Office. Revenue has now identified an unspecified number of additional records covered by the request. It also states that confusion arose as to the scope of the requests, which seems to me to have clear implications for the adequacy of its searches. Revenue says that records created before a particular date in 2012 were identified as not relevant. Revenue also refers to other records it holds that have been “deemed outside the scope of this request.” Neither the decisions issued to the applicants, nor Revenue’s submission to this Office, describe such “other” records, nor do those communications set out why such records are considered out of scope. However, I note that some of the records that Revenue has partially released were created before the date in 2012, as are some of the pages in records 21-23, as considered by the RSO. In the absence of a clear explanation of Revenue’s scoping of the requests and identification of relevant records, it is not possible for me to make a decision as to whether Revenue was correct to include or exclude particular records from its consideration of the applicants’ requests.

Revenue now accepts that it misapplied section 37(1) to some parts of the records. It remains unclear to me whether or not Revenue relies on section 35(1)(b) of the FOI Act, as one part of Revenue’s submission to this Office states that it is relied on but later in the same submission, that it is not.  Revenue’s basis for withholding records is therefore unclear.

I note that Revenue relies on the mandatory exemption under section 31(1)(a) in relation to most of the withheld records. While some of the records may indeed be so exempt, its submission to this Office does not contain sufficient detail to enable me to make findings in relation to all of the records concerned. For instance, it is not clear whether records 21-22 (RSO) are copies of the applicant’s tax files or are simply the originals of those files. If they are copies, the question of where the originals are held is relevant to the adequacy of Revenue’s searches. If they are originals, Revenue’s submission does not explain why it believes that legal professional privilege should apply to records that would have been created for purposes other than the seeking of legal advice or preparation for litigation.

Finally, and as noted above, records 21-23 (RSO) comprise over 1,500 pages of documents that have not been numbered or scheduled. Aside from the question of whether some of those records are exempt under section 31(1)(a), Revenue has not identified which of these records it has released to the applicants or believes to be in their possession.

It seems to me that in the circumstances, proceeding with this review would require considerable time and resources to be diverted from other reviews that would come before this Office in that time. The most appropriate decision for me to make is to annul Revenue’s decisions on the requests and to direct it to make fresh decisions on them in accordance with the provisions of the FOI Act.

The applicants, while disappointed, are agreeable to such a direction. Revenue apologises for how it has dealt with the applicants’ requests and is happy to consider them afresh. It also undertakes to engage more effectively with the applicants at the outset to determine the scope of the requests. Nevertheless, for the avoidance of doubt on the matter, I direct Revenue to engage with the applicants as a first step in relation to its understanding of the requests. Revenue should also describe the types of records held by it, which it considers the requests to cover and not cover.

That said, I note that the applicant’s requests cover records spanning 45 years. In the event that Revenue’s searches for such records indicate that they are voluminous, it is open to Revenue to consider whether section 15(1)(c) of the FOI Act would apply. However, it must also comply with the requirements of section 15(4) to assist or offer assistance to the requester to reframe the relevant part of the request so that it no longer falls within the provisions of section 15(1)(c).

Should a valid application be received arising from my decision in this case, this Office will endeavour to process that application as quickly as possible and in consideration of the interests of the affected parties.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Revenue’s decisions. I direct Revenue to carry out fresh decision making processes in respect of the requests, in accordance with the provisions of the FOI Act. I also direct it to engage with the applicants at the outset regarding its understanding of the requests and the types of records it holds that it considers the requests to cover and not cover.

Noting that both Revenue and the applicant have indicated that they accept the above direction, given that it is now more than eighteen months since the first request, I should remind Revenue that it is open to it to commence its fresh decision making processes before expiry of the statutory deadline referred to below.

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