Whether the CSSO was justified in refusing access under section 42(f) of the FOI Act to copies of invoices or fee notes submitted by certain named individuals for payment by the Department of Finance for legal work undertaken on the Apple tax case in certain years

14 January 2021

Background

In a request made to the Department of Finance dated 22 July 2020, the applicant sought access to copies of invoices or fee notes submitted by certain named individuals for payment by the Department for work undertaken on the Apple tax case in certain years ranging from 2017 to 2019. All of the named individuals were barristers at the time that they worked on the Apple tax case. On 27 July 2020, the Department transferred the request to the CSSO under section 12(3) of the FOI Act. The Department explained that the CSSO is the body that discharges the professional fees requested in relation to the State’s appeal of the Apple State aid decision.

The CSSO is a constituent part of the Office of the Attorney General (the AG’s Office). Section 42(f) of the FOI Act states that the Act does not apply to records held or created by the AG’s Office, other than records relating to general administration. On 25 August 2020, the CSSO refused the request on the basis that it related directly to a legal case and was not considered to fall within general administration. On 26 August 2020, the applicant sought an internal review of the CSSO’s decision.

In a decision dated 1 September 2020, the CSSO affirmed its original decision to refuse the request under section 42(f) of the Act. The CSSO stated that there is a clear distinction between financial records concerning the internal operation of its Office (e.g. financial expenditure on payroll or ongoing operational expenses) and financial records concerning legal proceedings in which the Office acted as solicitor for the State. The CSSO emphasised that the legal fees requested are specific to the particular litigation and thus would be based on the particular circumstances arising in the case, including, for example, the complexity of issues arising and the amount of work involved. It said that such information would not comprise a record relating to general administration.

On 4 September 2020, the applicant applied to this Office for a review of the CSSO’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the comments made in the application for review and to the submissions made by the CSSO in support of its decision. I note that, on 8 September 2020, this Office invited the applicant to make submissions in relation to any matter relevant to the review.  To date, however, no submissions have been received from the applicant. I have now decided to conclude the review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the CSSO was justified, under section 42(f) of the Act, in refusing access to the requested invoices or fee notes arising from legal work undertaken on the Apple tax case.

Analysis and Findings

As noted above, section 42(f) states that the Act does not apply to records held or created by the AG’s Office, other than records relating to general administration. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the AG's Office and its constituent offices, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the AG’s Office. The core business of the AG’s Office includes, but is not limited to, advising on legislation and litigation.

It is the applicant’s position that the data sought falls under the categories of “pay matters” and/or “accounts”. He considers that the requested information has no link whatsoever to the AG/CSSO role in advising on legislation or litigation. He disputes that the FOI Act makes any distinction between the records sought and other types of expenditure such as those relating to the internal operation of the CSSO. He contends that the Apple case and other such casework are “clearly part of the day-to-day business of the office and form part of its general administration”. He says that section 42(f) is intended to protect the CSSO’s role as a legal adviser but not matters relating to its finances, the bills it pays, and the legal costs it incurs. He suggests that the invoices and fee notes for outside legal expertise would be submitted to and processed by the accounts department of the CSSO in a similar manner to other fees paid to third parties such a building contractors, cleaning firms, or catering.

The CSSO states that the applicant is correct in believing that the Office’s Financial Management System is the appropriate mechanism to effect and record all payments made by the Office, including the payment of fee notes. However, it considers that the applicant is “wholly incorrect” insofar as he suggests that the mechanism for effecting a payment determines how the payment should be categorised. The CSSO maintains that fee notes and other legal expenses are directly related to the legal casework undertaken by the CSSO on behalf of its clients and not to the general administration of the Office. It says that the information sought relates to the core legal work of the Office, not to administrative functions. While the CSSO acknowledges that the administrative functions of the Office facilitate the core legal work to be done, it notes that the costs relating to the administrative functions are charged to the administrative subheads in the vote. It adds:

“The payment of legal fees only arises because of the management, by this Office, of the legal case file. Legal fees are processed by the legal file handler as part of the legal work relating to each case and are sent to Accounts Section for payment. The total amounts paid in legal fees are accounted for in the Annual Appropriation account.”

Section 42 is contained in Part 5 of the Act, which is entitled “Restriction of Act”. Its intention is to exclude the records held by the relevant bodies from the ambit of the Act subject to certain exceptions. The Irish Supreme Court has indicated that such exceptions should be interpreted narrowly. It seems to me that the “pay matters” and “accounts” that form part of the general administration of the AG’s Office are those that relate to the general or routine management of the Office and its constituent offices, not the legal fees and other expenses incurred in connection with specific cases such the Apple tax case. Such costs would be based on the particular circumstances arising in the case, including the complexity of the issues concerned and the amount of work involved. I therefore find that the records requested do not relate to general administration and that section 42(f) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CSSO in this case.

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