Whether Revenue was justified in refusing access to further records relating to the applicant’s affairs under section 15(1)(a) of the FOI Act, on the ground that no further records exist or can be found after all reasonable steps to locate them

18 January 2021

Background

As the applicant in this case had legal representation, all references to communications with the applicant should be taken to include communications with his legal representatives. On 3 January 2020, the applicant submitted a request to Revenue for all data held concerning his affairs. He also sought all data relating to a data breach.

In a decision dated 9 March 2020, Revenue part-granted the request. Following what it described as a comprehensive search, it identified 207 records as falling within the scope of the request. It refused access to 132 of those records under section 15(1)(i) of the FOI Act, on the basis they had previously been released in full in response to a recent subject access request under the Data Protection Act. Of the 75 records that had been released on foot of that earlier request with minor redactions, it said it had re-examined the records on foot of the FOI request and had decided to release them with minor redactions under section 37, which is concerned with the protection of personal information relating to third parties.

On 19 March 2020, the applicant sought an internal review of Revenue’s decision. The request for internal review suggested that certain records were being withheld. In particular, the applicant pointed to references in two records to matters which, in his view, suggested that Revenue held further records. The first record made reference to a television programme and the second record made reference to material in the knowledge of Revenue received from investigations into other parties concerning a named company.

On 8 April 2020, Revenue varied its original decision. It released details of the information redacted from three of the records to which access had been granted in part and affirmed its decision to redact information from the remaining 72 records. It further explained that the references in records 104 and 115 to the matters identified by the applicant had been examined and no further records relating to those matters had been located.

On 18 September 2020, the applicant sought a review by this Office of Revenue’s decision. He again referenced the television programme and information relating to investigations into other parties that he believes to relate to him. He subsequently confirmed that he was not seeking a review of the redactions made to the records released and that the review could be confined to whether Revenue held further records coming within the scope of his request.

I have now completed my review in this case. I have decided to conclude the review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and Revenue as set out above and to the communications between this Office and both Revenue and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether Revenue was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant’s affairs on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that 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. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

As Ms Whelan of this Office has previously outlined to the applicant, Revenue said that all records relating to the applicant are held on a single lever arch folder in a secure filing cabinet. It said that in conducting searches for relevant records, it consulted with the relevant case worker who indicated that no records relating to the applicant’s affairs are held in other locations. Revenue conducted a manual search of the relevant file, which was photocopied in its entirety in response to the request.

On the matter of the existence of records relating to the television programme identified in one of the records released, Revenue said that the only record referring to the programme (record 115) was provided to the applicant. It said the footage from the programme is freely available to any member of the public and that it was not required to keep records relating to the programme on the applicant’s file. In response to a query by this Office, Revenue said no memos, phone notes or other correspondence or records relating to the programme in relation to the applicant’s affairs exist.

On the matter of records relating to investigations into other parties, Revenue said that its policy is that no information relating to other parties is held on an individual customer’s file. It said that any information received from investigations into other parties is confidential taxpayer information and would be held on those parties’ files. It said it is extremely conscious that the contamination of taxpayers’ records does not occur and that it takes care that only records relevant to a particular customer are held on a customer’s file and that no information relating to a customer is held on other files.

Responding to subsequent queries by this Office, however, Revenue confirmed that a further 10 records held on files relating to an investigation into a named company may fall under the scope of the applicant’s request. In particular, Revenue stated that the applicant is referred to in records detailing the chronology of the investigation and the chronology of contacts/events in the investigation. While Revenue stated that it was in a position to release one of the records, it considered the remaining nine records exempt under various sections of the FOI Act.

In the circumstances, I am not in a position to find that Revenue carried out all reasonable steps in an effort to ascertain the whereabouts of relevant records when processing his request. I find, therefore, that Revenue was not justified in refusing access to additional records under section 15(1)(a). However, I do not consider it appropriate to simply direct Revenue to release the additional records identified. It is possible that one or more such records may be exempt from release or contain exempt information. Indeed, I note Revenue’s position that nine of the records may be exempt under various sections of the FOI Act.

In the circumstances, I find that the appropriate course of action to take is to annul Revenue’s decision, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance decision on the request in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with Revenue’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of Revenue to refuse access to further records relating to the applicant’s affairs on the grounds that the records sought cannot be found or do not exist. I direct Revenue to consider the request afresh.

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