Whether Revenue was justified in refusing, under various provisions of the FOI Act, access to records concerning the applicant’s registration for certain taxes and concerning certain Notices of Assessment issued to him

27 July 2021

Background

The applicant’s FOI request of 9 June 2020 sought access to records concerning his registration for two different taxes and two particular Notices of Assessments (NoAs) issued to him by Revenue. In summary, he sought the registration forms (with associated documents) for the two taxes and copies of the rationale and any supporting documentation used to register him. In relation to one of the taxes, he also sought any other relevant documentation associated with the registration. In relation to the NoAs, he sought details of how they were arrived at, the calculations used, the evidence that prompted them and any other relevant associated documentation.

Revenue’s decision of 8 July 2020 covered one record, which it withheld under sections 30(1)(a) (investigations by an FOI body) and 32(1)(a)(i) (investigation of offences) of the FOI Act. The applicant sought an internal review of this decision on 28 July 2020. He included a copy of a letter he had received from Revenue and asked why the letter and his reply had not been considered for release. He also said that other records such as the registration forms (if they exist), his appeal, correspondence and documentation relating to Revenue’s demands for returns and payment of taxes should have been considered for release. Revenue’s internal review decision of 13 August 2020 said that it had located 32 other records that were not immediately apparent as relating to the applicant because “they primarily referred to an ongoing investigation into another entity.” It released 14 of these records in full. It refused access to the other 18, and affirmed its refusal of the record the subject of its original decision, under sections 29(1) (deliberative process), 30(1)(a), 30(1)(c) (negotiations of an FOI body), 32(1)(a)(i) and 37(1) (personal information) of the FOI Act.

On 29 August 2020, the applicant sought a review of Revenue’s decision by this Office. He also listed further records that he said should have been considered for release (i.e. a letter and registration forms relating to the two taxes). I understand that Revenue released the letter on 4 September 2020 along with an updated schedule. It also subsequently released two further records that it identified in the course of this review. As this Office’s Investigator told the applicant, Revenue now seeks to rely on sections 35(1)(b) (duty of confidence) and 41(1)(a) (disclosure prohibited by an enactment) of the FOI Act in this case.

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 correspondence between this Office, Revenue and the applicant, the contents of the records at issue and the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether (i) whether registration forms as completed by the applicant in relation to the two taxes exist and (ii) whether Revenue’s refusal of other records was justified under various provisions of the FOI Act.

In relation to (ii), I note that Revenue’s original schedule lists records IPD1-3, IPD6-9, IPD13-20 and IPD23-26 as having been withheld. However, the schedule that it provided to this Office, which I take it to be a copy of the updated schedule as provided to the applicant in September 2020, lists records IPD1-3, IPD6-9, IPD13-20, IPD23-25 and IPD27 as withheld. That schedule also indicates that record IPD26 was released. Revenue clarifies that what is listed as record IPD26 on this schedule is a further copy of the released IPD22, which position is supported by the copies of the relevant records that it supplied to this Office. Accordingly, my review concerns what the schedule provided to the OIC lists as records IPD1-3, IPD6-9, IPD13-20, IPD23-25 and IPD27.

It should be noted that this Office has no role in reviewing Revenue’s examination of the applicant’s tax affairs, how it dealt with him in relation to such matters or in obtaining answers to his questions.

Preliminary matters

First, section 13(4) of the FOI Act requires me not to take into account any reasons that the applicant has for making its FOI request. Section 25(3) of the FOI act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.

 Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the withheld record for the purpose of granting access to those particular sentences or paragraphs. I should also make it clear that the FOI Act requires me not to take into account any reasons that the applicant has for making his FOI request.

Revenue’s schedule describes the withheld records in general terms and I will refer to those descriptions in my decision. However, I must limit the level of any further detail I can give about the records because of the requirements of section 25(3) of the FOI Act, which requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions.

Findings

Section 15(1)(a) – whether records exist

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 the Commissioner in a case involving section 15(1)(a) 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.

Revenue says that no registration forms exist, which were completed by the applicant and that, as it has already explained to him, it registered him for the taxes concerned on foot of its investigations into his tax affairs. The applicant does not appear to dispute Revenue’s position that the registration forms he is seeking do not exist. Rather, he says he finds it unsettling that Revenue can take such steps and asks whether controls exist to ensure that this power is not abused. However, as explained above, this Office has no role in examining Revenue’s handling of the applicant’s tax affairs.

In the circumstances, I accept Revenue’s position that the requested registration forms do not exist and I find that section 15(1)(a) applies to them.

Section 41(1)(a) – disclosure prohibited by an enactment

S41(1)(a) of the FOI Act requires the refusal of a record the disclosure of which is prohibited by law of the European Union or any enactment, other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule.  Revenue now relies on section 41(1)(a) in relation to records IPD 1 (assessment calculation), IPD 2 (Revenue internal email), IPD 17 (Revenue Business Profile information) and IPD 19 (Revenue internal email) on the basis that while they contain taxpayer information relating to the applicant, they also contain taxpayer information relating to another taxpayer or taxpayers. Revenue says that further to section 851A of the Taxes Consolidation Act 1997 (the TCA), as amended, it is required to treat taxpayer information as confidential. Section 851A of the TCA is not listed in Schedule 3 to the FOI Act, which excludes certain enactments from the application of section 41 of the FOI Act.

Generally speaking, section 851A(1) of the TCA defines taxpayer information as information of any kind and in any form relating to one or more persons that is obtained by a Revenue Officer or for the purposes of the Acts, purportedly for the purposes of the Acts or prepared from information so obtained, but does not include information that does not directly or indirectly reveal the identity of the person to whom it relates. Subsection (2) provides that all taxpayer information held by Revenue or by a Revenue Officer is confidential and may only be disclosed in accordance with section 851A or as is otherwise provided for by any other statutory provision. One of the grounds further to which taxpayer information may be disclosed is where the information concerned relates to the person to whom disclosure is made.

In general, I accept that taxpayer information relating to any party, including information that directly or indirectly reveals the identity of the party to whom it relates, is covered by the requirements of section 851A of the TCA. In turn and again in general, I accept that section 41(1)(a) of the FOI Act applies to taxpayer information insofar as it relates to a party other than a requester.

The applicant says that he wants to gather whatever information is available to Revenue to understand how its assessments of his tax liabilities were arrived at (such as record IPD1) and that any taxpayer would expect to be given an indication of such matters. As I have explained, I cannot have regard to his reasons for seeking the records or the fact that he takes issue with how Revenue has carried out its review of his liabilities. Neither can I take into account his view that some or all of them should have been provided to him in processes outside of the FOI Act. Furthermore, section 41(1)(a) is mandatory and must be applied where the terms of the provision are met.

As already noted, Revenue’s internal review decision says that the records identified at that stage “primarily referred to an ongoing investigation into another entity”. Having examined records IPD1, IPD2, IPD17 and IPD19, I accept that they contain taxpayer information about the applicant that is inextricably linked to taxpayer information about other parties. I do not consider it possible to extract any details from any of these records that relate solely to the applicant and in such circumstances, I do not consider that the TCA permits any disclosure of these records to him. It follows, in my view, that such disclosure is prohibited by section 851A of the TCA. I find that section 41(1)(a) applies to these records.

While most of the withheld records have been refused under quite a number of FOI provisions, including sections 30(1)(a) and 37(1), it is not clear to me why Revenue does not consider section 41(1)(a) to apply to further of the records at issue. However, as noted above, I must find that section 41(1)(a) applies where I am satisfied that its requirements have been met.

Records IPD3 and IPD6-8 are typed and handwritten notes of the applicant’s interviews with Revenue staff. Record IPD15 is a Revenue email, record IPD16 comprises internal Revenue notes and record IPD 18 is an internal Revenue email. I note that, in particular, the applicant says that he wants access to all interview notes so that he can establish if the conversations were recorded accurately. However, the fact that the applicant was party to various interviews is not relevant to my consideration of whether notes of those interviews contain confidential third party taxpayer information for the purposes of section 851A of the TCA and in turn section 41(1)(a) of the FOI Act. Having regard to the contents of records IPD 3, IPD6-8, IPD15-16 and IPD18, I am satisfied that they contain taxpayer information about the applicant that is inextricably linked to taxpayer information about other taxpayers. I am satisfied that their disclosure is prohibited by section 851A of the TCA and I find that section 41(1)(a) applies to them.

However, the remaining records IPD 9, IPD13-14, IPD20, IPD23-25 and IPD27 do not appear to me to disclose third party taxpayer information. Accordingly, and given the lack of relevant argument from Revenue, I find that section 41(1)(a) does not applies to those records.

For the avoidance of doubt, I have no reason to find that any further records are exempt under section 35(1)(b) for the reason that their disclosure would breach a duty of confidence owed to third party taxpayers by Revenue. Section 35(1)(b) requires the refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for … by enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.” It is generally accepted that Revenue owes any parties to whom taxpayer information relates a duty of confidence further to section 851A of the TCA. Therefore, for the reasons set out above in relation to the application of section 41(1)(a), I am of the view that section 35(1)(b) does not apply to the remaining records.

Section 37 - personal Information

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the … medical … history of the individual, (ii) information relating to the financial affairs of the individual", (iii) information relating to the employment or employment history of the individual” and (xi) “information required for the purpose of assessing the liability of the individual in respect of a tax or duty or other payment owed or payable to the State or to … [an] FOI body, or for the purpose of collecting an amount due from the individual in respect of such a tax or duty or other payment”. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Records IPD13 and IPD14 are bank statements and record IPD 20 is a Form 11, which I understand is an income tax return. IPD 24 is a note of a telephone conversation between the applicant and Revenue.

Having examined records IPD13, IPD14 and IPD20, I am satisfied that in their entirety they contain information of a type that meets the definitions of personal information and that they fall within some of the above examples of what comprises personal information. I am also satisfied that the fourth word to the end of the first sentence in record IPD24 comprises information meeting the definitions of personal information and which also falls within one of the examples of personal information.

I note the applicant’s view that records IPD13 and IPD14 should be released because they relate to him. He also says that while record IPD20 is a form that he should have completed, he does not recall doing so. He says that he is entitled to record IPD20 because it forms the basis for the assessments made of his tax liabilities. In making my findings on section 37, it is not relevant whether the applicant provided the relevant records or information in them, or whether he may be otherwise aware of the details concerned. This is because release of records under FOI is generally understood to have the same effect as publishing them to the world at large.  

Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. While records IPD13, IPD14 and IPD20 and the relevant part of record IPD24 contain personal information relating to the applicant, that information is, in my view, inextricably linked to personal information relating to other identifiable individuals (joint personal information). I am satisfied that even if, for instance, individual names were withheld, the relevant persons would be identifiable from the context and content of the remaining details. I do not consider it feasible to separate out any personal information relating solely to the applicant.

I find that section 37(1) of the FOI Act applies to records IPD13, IPD14 and IPD20 in full and from the fourth word to the end of the first sentence in record IPD24.  This is subject to the consideration of sections 37(2) and (5) in relation to these records.

Revenue also claims section 37(1) in relation to most of the remaining records i.e. records IPD23, IPD 24 (remainder), IPD 25 and IPD27. I have examined the contents of these records and, for completeness, record IPD9. These records were created by public servants in the course of performing their duties and otherwise contain personal information relating to only the applicant. This is sufficient for me to find that they are also exempt under section 37(1) of the FOI Act but this is also subject to the consideration of sections 37(2) and (5) of the FOI Act.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester.

Insofar as records IPD13, IPD14 and IPD20 and the relevant part of record IPD24 are concerned, I have already outlined the provisions of section 37(7). While the relevant details comprise joint personal information, as outlined above, I do not consider that personal information relating to the applicant can be separated from that of other individuals. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

As noted above, records IPD9, IPD23, IPD 24 (remainder), IPD 25 and IPD27 were created by public servants in the course of performing their duties and otherwise contain personal information relating to only the applicant. On this basis, I find that section 37(2)(a) disapplies section 37(1) in relation to these records. However, I am obliged to consider the other exemptions relied on by the Revenue in relation to these records, which I will do later in my decision.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

As outlined above, the applicant says that the records relate to him and that he should be aware of how Revenue assessed his tax liabilities. He says that his bank statements should be released to him. He says it is unsettling that Revenue can register taxpayers for taxes without giving them a way to refute such actions. He questions whether there are controls in place to ensure that this power is not abused.

The applicant’s arguments seem to me to reflect his private interests in obtaining access to the withheld records. I accept that their disclosure would give him some insight into Revenue’s assessment of his tax affairs. However, this does not mean that there should be no protection of privacy rights of other individuals.

Furthermore, I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, because the applicant is dissatisfied with Revenue’s assessments of his tax liabilities. Neither is it appropriate for me to make such a direction because the applicant may have furnished Revenue with some of the records or information at issue. As I have already said, I have no remit to consider, or make findings on, the adequacy of Revenue’s actions. Neither is it for me to determine how Revenue should engage with the applicant in relation to its investigation of his tax affairs or explain the basis for its determination of his liabilities.

It seems to me Revenue’s release of certain records to the applicant attempts to strike a balance between the competing interests. I am satisfied that placing records IPD13, IPD14 and IPD20 and the relevant part of record IPD24 in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of that information that, on balance, outweigh the right to privacy of the individuals to whom it relates. I find, therefore, that section 37(5)(a) does not apply.

Other exemptions claimed - records IPD 9, IPD23, IPD 24 (remainder), IPD 25 and IPD27

I will now go on to consider Revenue’s submissions regarding its application of sections 29(1), 30(1)(a), 30(1)(c) and 32(1)(a)(i) to the remaining withheld records. At the outset, it should be noted that the relevant submissions concern its view that the provisions apply to the majority of the withheld records. I have already found that a number of these are covered by the provisions of section 41(1)(a); however some or all of those records may well otherwise qualify for exemption under the other FOI provisions relied on in this case.

According to Revenue’s schedules, record IPD9 is a Revenue note regarding a telephone call, records IPD23 and IPD25 are both Revenue internal emails and, as already mentioned, record IPD24 is a note of a telephone conversation between the applicant and Revenue. Record IPD27 is described as a Revenue email. To put my decision on these records into context, however, I feel that it is necessary to describe them further, whilst also bearing in mind my obligations under section 25(3) of the FOI Act. Record IPD9 concerns the applicant’s general queries about a letter that he had received from Revenue regarding his tax affairs. The letter was also released under FOI. While record IPD9’s contents reflect the details in the letter, it is nonetheless administrative in nature. Records IPD23-25 and IPD27 concern contacts between Revenue and the Tax Appeals Commission (the TAC) relating to the applicant’s appeal to the TAC. However, those records concern administrative aspects of the appeals process, rather than any substantive aspects of either Revenue’s examination of the applicant’s tax affairs, the applicant’s appeal or the TAC’s review of matters so appealed.

Section 29(1) – deliberative processes

Section 29 provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.

Revenue says that the records relate to deliberative process discussions that took place amongst Revenue staff and between them and the TAC in relation to this case. It says that the deliberations involve the taking and giving of advice, examining the merits of various courses of action and evaluating competing arguments that may have a bearing on the appropriate course of action. It says that disclosing such details could enable other taxpayers to circumvent its investigations and therefore impact on its ability to deliberate on such matters, which is not in the public interest. I appreciate Revenue’s concerns about such matters. However, having considered the contents of the records, as described above, it seems to me that they do not contain the type of information that Revenue has concerns over being disclosed. In particular, it is not clear to me how any harm to the public interest flows from their release and I find that they are not exempt under section 29(1) of the FOI Act.

Section 30(1)(a) - investigations and investigation procedures

Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where a record is exempt under section 30(1), the public interest test at section 30(2) must be considered.

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits or prejudice the "procedures or methods employed for the conduct thereof”. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

Revenue says that the records reveal investigative procedures and methodologies used in its investigation of the applicant’s tax affairs that are also relevant to other ongoing and future similar investigations. In other words, it is saying that the records reveal its general systematic investigative approach. It also says that the records disclose information about the direction, level and breadth of its investigations and also the processes employed by the TAC. It maintains that such disclosure could enable the non-compliant to evade detection and would therefore prejudice the effectiveness of its investigations generally and also prejudice the procedures etc. it employs for carrying out those investigations. I also take Revenue’s comments as arguing that release of the records would result in similar harms being caused to the effectiveness of the TAC’s appeals processes and to the procedures used by the TAC for carrying out those appeals.

Again, however, having regard to the contents of the remaining records as described above, I do not consider them to contain information of the sort described by Revenue. They do not appear to disclose any aspects of Revenue’s examination of the applicant’s tax affairs, or information relating to its investigative procedures or methodologies generally. Neither are they concerned with the substance of the applicant’s appeal to the TAC, or the TAC’s procedures for reviewing such an appeal. I find that records IPD 9 and IPD23-26 are not exempt under section 30(1)(a). There is no need for me to consider the public interest test at section 30(2) in the circumstances.

Section 30(1)(c) – negotiation positions and plans

Section 30(1)(c) provides that a head may refuse to grant an FOI 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.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike sections 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. However, while there is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations, this matter may be relevant to the public interest test in section 30(2).

Revenue says that section 30(1)(c) applies to records relating to discussion and negotiations that require confidentiality to enable the parties to put forward options for closure, such as background briefing material, position papers, evaluations of the parties’ various proposals etc. It says that the disclosure of positions taken by Revenue in past or current negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, which is not in the public interest. Having regard to the contents of the records as described above, however, I do not consider them to contain the sort of information that Revenue describes. In particular, it is not apparent to me that they contain details of either positions relevant to Revenue’s negotiations, or procedures/plans etc. that Revenue uses in such negotiations. I find that the records are not exempt under section 30(1)(c). As such, there is no need for me to consider the public interest.

Section 32(1)(a) – prejudice to the investigation of offences

Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid. If section 32(1)(a)(i) applies, the public interest is required to be considered if certain specified circumstances exist.

As already outlined in relation to its reliance on section 30(1)(a), Revenue says that the records could reveal the direction, level or breadth of its investigations and the TAC’s appeal processes as well as the methodology used by Revenue in pursuing cases. It says that disclosure of such information could seriously prejudice the effectiveness or outcome of this and other cases. Having regard to the contents of the records as described earlier, I do not consider them to contain information of the sort described by Revenue. I find that section 32(1)(a)(i) does not apply to them. I should also say that for the same reasons, I would not find section 32(1)(a)(ii) to apply, which Revenue relied on specifically in relation to record IPD1. Section 32(1)(a)(ii) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. The public interest test in section 32 does not need to be considered, accordingly.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary Revenue’s decision. I affirm its refusal of registration forms under section 15(1)(a) and its refusal of records IPD1, IPD2, IPD3, IPD6-8, IPD13-20 and part of record IPD24 (i.e. from the fourth word to the end of the first sentence) under sections 37(1) and 41(1)(a) of the FOI Act.

I annul Revenue’s refusal to release the remaining records and I direct it to grant access to them i.e. records IPD9, IPD23, IPD 24 (remainder), IPD25 and IPD27.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Deirdre McGoldrick

Senior Investigator