Whether Revenue was justified in refusing access to records relating to inheritance/gift tax liabilities paid on the applicant-�s behalf in relation to a number of specified endowments

3 October 2023

Background

In a request dated 29 November 2022, the applicant sought access to records relating to all inheritance/gift tax liabilities paid on her behalf in relation to four specified endowments. In a decision dated 9 February 2023, Revenue identified seven records that fell within the scope of the request, granting access in full to three and in part to four of the records. Revenue cited section 37(1) of the FOI Act as a basis to withhold certain information in the records to which it partly granted access. In addition, Revenue refused the part of the request that related to the first specified endowment on an administrative basis (that the records sought did not exist or could not be found after all reasonable steps to locate them had been taken) under section 15(1)(a) of the FOI Act.

On 18 February 2023, the applicant requested an internal review of Revenue-�s decision. Revenue issued its internal review decision on 14 March 2023, wherein it affirmed its original decision. On 13 June 2023, the applicant applied to this Office for a review of Revenue-�s decision. In its internal review decision, Revenue made reference to an additional provision of the FOI Act, namely section 15(1)(i), which provides that an FOI body may refuse a request where it relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. However, in subsequent correspondence with this Office, Revenue indicated that it was not relying on section 15(1)(i) as a basis on which to withhold the records at issue.

Furthermore, in correspondence with this Office in the course of this review, Revenue indicated that, in deciding on the applicant-�s request, it had also considered Statutory Instrument No. 218/2016 -� Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (-�the 2016 Regulations-�), which provide a limited right of access to the personal information of third parties in certain specified circumstances. As the applicant had not had an opportunity to consider the 2016 Regulations in the context of this matter, I wrote to her to put her on notice of Revenue-�s reliance on same, and to invite her to make any additional submissions that she wishes. The applicant subsequently made further submissions and I have considered these in full.

In addition, in the course of this review, Revenue indicated in correspondence with this Office that, upon further consideration of the matter, it had decided to release one further record (record 2) in full to the applicant, as well as releasing additional material from records 3, 6 and 7. Accordingly, record 2 is now outside the scope of this review, and records 3, 6 and 7 will be considered as part of the review only in relation to the remaining material redacted from the records.

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 submissions made by Revenue and by the applicant. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether Revenue was entitled under section 37(1) of the FOI Act to refuse access in part to the relevant records sought by the applicant, and whether it was justified in administratively refusing part of the applicant-�s request under section 15(1)(a) of the FOI Act.

Analysis and Findings

Section 37

Section 37(1)

Revenue relied on section 37(1) of the FOI Act as a basis to withhold in part records 3, 6 and 7 of the seven records it identified as falling within the scope of the applicant-�s FOI request.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including at point (ii) information relating to the financial affairs of the individual.

I have examined the records at issue and I accept that the information that Revenue has redacted from the records is the personal information of third parties, for the purposes of section 2 of the FOI Act, such as to bring it within the scope of section 37(1).

However, the matter does not end there as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.  

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have 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] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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.

In its submissions regarding section 37(5)(a), Revenue stated that, as a public interest factor in favour of releasing the personal information in the records, it had identified the public interest in ensuring the openness and accountability of public bodies regarding the manner in which they carried out their functions. Against this, as a public interest factor in favour of withholding the relevant information, Revenue stated that it had identified the very strong public interest in protecting privacy rights as set out in the FOI Act and under the Constitution. Revenue stated that its view was that the public interest in maintaining the right to privacy of the relevant individuals outweighed the public interest in disclosing their personal information.

Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

Section 37(8) of the FOI Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:

-�(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations-�.

Such regulations have indeed been made, in the form of the 2016 Regulations. Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request for access to records which involves the disclosure of personal information relating to a deceased individual shall be granted in certain circumstances. Such a request shall, subject to the other provisions of the FOI Act, be granted if the case falls within a case to which Regulation 7 of the 2016 Regulations applies. Regulation 7 applies where:

(a) the requester concerned belongs to one or other of the following classes:

(i) a personal representative of the individual acting in due course of administration of the individual-�s estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, or

(b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the FOI body], having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

In correspondence with this Office, Revenue indicated that it had considered whether the 2016 Regulations might operate to grant the applicant a right of access to the personal information of certain deceased individuals that it had redacted under section 37(1) from the records at issue. It stated that, although it was satisfied that the applicant fell within the category of persons for whom a right of access might exist, under the 2016 Regulations, to information relating to her late parents (which information was released where it appeared in the records), it was not satisfied that she had established a potential right of access under the 2016 Regulations to the personal information of any other deceased individuals named in the records.

In her submissions, the applicant stated her belief that the information withheld from the records related to her in a personal capacity, and outlined the basis on which she held this view. In essence, the applicant-�s argument is that all the information in the records at issue relates to her personally as a result of what she believes is an inheritance tax (CAT) liability that has been wrongfully levied against her, as a result of the alleged falsification of signatures on certain documentation relevant to the specified endowments. The applicant also argued that the records related to her because they tended to show evidence of -�gifts-� that had allegedly been made on her behalf from certain inherited sums to third parties, an action which the applicant argued was undertaken without her knowledge. The applicant argued that there was no reason why copies of records relating to her inheritance should be redacted, and that she was entitled to what she described as her own taxation information. The applicant also stated that she had a concern that additional fraudulent actions (for example, falsified signatures in her name) may be identifiable within the records coming within the scope of her request.

While I can certainly appreciate the applicant-�s concerns regarding alleged financial gifts made in her name, but without her knowledge, I have found that the information redacted from the records does not relate to her personally but, as per the definition of personal information in section 2 of the FOI Act, is the personal information of third parties. As such, the only remaining question I am required to answer in the context of the potential applicability of the 2016 Regulations is whether the regulations operate to disapply section 37(1) and grant the applicant a right of access to this third party personal information.
There is no evidence before me to suggest, and nor has it been argued, that the applicant falls within the category of persons outlined above who may enjoy a right of access, under the 2016 Regulations, to the personal information of the deceased individuals that appears in the records, and which Revenue withheld from release under section 37(1) of the FOI Act. In those circumstances, I find that the 2016 Regulations do not operate to disapply section 37(1) in respect of this information.

Accordingly, I find that Revenue was justified in refusing access to the information in the records that it withheld from release under section 37(1) of the FOI Act.

Section 15(1)

Revenue argued that section 15(1)(a) of the FOI Act applied in respect of the part of the request relating to the first specified endowment. As outlined above, section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

In its submissions, Revenue stated that its position was that records relating to the first endowment specified in the applicant-�s FOI request could not be found after it had taken all reasonable steps to locate them. It stated that the records sought dated back over fifty years. It added that its Personal Division had conducted an extensive search for relevant records and identified the seven records that still existed and were within the scope of the request generally, but that it had not been possible to locate all relevant records due to the lapse in time since the records were created.

Revenue added that the applicant-�s request had been broad and had not specified particulars of the records that she expected to receive. In addition, it stated that in follow-up correspondence the applicant had stated that she had previously received -�over 100

documents/letters etc-� under a previous request made 25 years ago following searches

conducted at that time, and that she had also stated that these records were still available to her. Notwithstanding this point, Revenue stated that it been unable to provide these same records in response to the current request as they could not be located after all reasonable steps to ascertain their whereabouts had been taken.

Revenue provided details of the searches it had conducted in its efforts to locate records relevant to the applicant-�s FOI request. In particular, it stated that the request was circulated to the divisions that might be expected to hold records falling within the parameters of the request, namely Capital Acquisitions Tax Branch in Personal Division.

Revenue stated that its Personal Division conducted a thorough search of all Revenue systems and paper files. These included searches of the following systems:

• The MyEnquiries (also known as the -�Integrated Contacts (IC)-�) system, through which customers and their agents can correspond directly with Revenue. Revenue outlined that emails, postal correspondence, responses from Revenue staff and associated documents are stored on this system, and that all correspondence is stored under the customer-�s tax number. Revenue stated that only correspondence made through the system is stored here, and no historic correspondence had been or is uploaded to the system.
• The Integrated Taxation Processing (ITP) system, which stores data reflecting the tax position of an individual customer under their relevant taxheads. Revenue stated that this system is for internal use only.
• The Integrated Business Intelligence (IBI) portal, through which Revenue stated all relevant information is amalgamated. Revenue stated that this system holds specific taxpayer information and links to the other systems where information may be found on a customer, including for example to the information contained in the IC system.
• The Capital Acquisitions Tax (CAT) Ingress system, which Revenue stated was the old system holding CAT file information for all dates up to 2010. Revenue said that this system was searched for information sought by the applicant on events that occurred in the 1970s before systems such as MyEnquiries (IC), ITP and IBI were in existence. It said that this system contains file numbers for paper records held, as well as providing details of the particular event (inheritance or gift) the paper records related to, as well as details of the disponer and all beneficiaries of the event. Revenue said that a search of this system was conducted for details of possible records relating to the applicant and a number of specified relations of hers, and that a file reference for the applicant from 1982 was found on this system, but that the corresponding file could not be found in any of the repositories it used to store CAT files.

Revenue stated that the above systems could be searched by name, address, reference number etc. It stated that an individual-�s records are filed under their tax number and this was the most accurate method for searching for records. In this case, Revenue stated that all combinations of these search parameters had been used to locate relevant records, and that searches had been conducted for the applicant herself and also for records relating to the relevant relatives of hers. It stated that no records relevant to the request, other than the aforementioned file reference in the CAT Ingress system, were found in any of the systems mentioned above.

Revenue stated that it also searched its paper file system for records relevant to the request. It said that the paper files associated with the file reference to the applicant that was identified following the search of the Ingress system were stored in a specified location. It stated that a manual search for relevant information, over a considerable period of time, was carried out of the files that were located in this location, as well as of additional files related to the applicant-�s relatives. Revenue went on to provide specific details of the searches it had carried out of this location.

In addition, Revenue stated that it also searched a storage facility at a second specified location, and that no further records relating to the applicant were found here. Revenue stated that the search in this second location was particularly significant, as Revenue had

restructured and realigned over the years since 1971, which is the year of the first event for

which the applicant requested records. Revenue stated that, as it underwent this restructuring and realignment process, the applicant-�s taxes would have been dealt with by different divisions and districts that no longer existed. It stated that files from these areas that still existed would have been located in either of the two specified locations.

I put Revenue-�s account of the searches it had carried out to the applicant for her consideration, and to offer her the opportunity to make any further submissions that she wished. In response, the applicant reiterated her position that signatures on certain records pertaining to the endowments had been forged, resulting in various actions being taken in relation to the endowments without her knowledge, including extra taxation liabilities, revaluations of relevant properties and -�gifts-� and payments made from trust funds to various third parties. Again, while I can very easily understand the applicant-�s concerns in relation to such matters, it is not clear to me that these concerns go to the matter of the reasonableness of the searches carried out by Revenue, for the purposes of section 15(1)(a) of the FOI Act, for additional relevant records.

In addition, in response to the details of the searches carried out by Revenue, the applicant provided this Office with two additional terms that she believed may, if searched for, produce results relating to her endowments. However, this Office is not a first instance decision maker, but rather its role is to review first instance decisions of FOI bodies. Such first instance decisions are based on the wording of the original FOI request and internal review request. It follows that jurisdiction of this Office is similarly based on the wording of the original FOI request and internal review request. We do not have jurisdiction to consider the release of information that an applicant has not sought in their original request, or to review an FOI Body's decision in relation to particular records where an applicant has not sought to have these decisions reviewed.  Accordingly, I do not consider that it is open to me to direct Revenue to search for, or to otherwise consider, additional terms that were not specified in the applicant-�s original FOI request. Should the applicant wish to submit a fresh request for information in records held by Revenue, with reference to the additional terms she provided to this Office, it is open to her to do so.

On the basis of the information provided by Revenue, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the records sought. I find that the account from Revenue as outlined above constitutes a clear and sufficiently detailed explanation of its systems and processes that accounts for its inability to locate the records sought by the applicant, and that all reasonable steps appear to have been taken by Revenue in attempting to find such records. It should be noted that the test in section 15(1)(a) is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location or existence of records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found. Given the requirements of this test, I consider that Revenue has provided sufficient information to this Office to demonstrate that the steps it took in this case to establish that the records could not be located were reasonable.  

Accordingly, I find that, in respect of the first endowment specified in the applicant-�s request, Revenue was entitled to rely on section 15(1)(a) of the FOI Act. I find that it was reasonable for Revenue to hold on the basis of its searches that the relevant records could not be found after all reasonable efforts to locate them had been made, and to refuse that aspect of the request on this basis.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue-�s decision. I find that Revenue was entitled under section 37(1) to withhold access to information in records 3, 6 and 7. In addition, I find that Revenue was justified in refusing on an administrative basis under section 15(1)(a) the part of the applicant-�s request relating to the first specified endowment, on the grounds that the relevant records cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

Neill Dougan
Investigator