Case number: OIC-53496-X3X1B4 (190227)
10 October 2019
On 17 January 2019, the applicant made an FOI request to the Revenue for “[a]ll correspondence, briefing notes, memoranda, reports, opinions, advice, notes of consultations and meetings, minutes, attendances and any other records relating to [the Revenue’s] consideration of all corporation tax returns filed by or on behalf of [the applicant] from 1996 to date. “
On 1 February 2019, the Revenue told the applicant that a request for 22 years’ worth of records would cause a substantial interference with the work of the Revenue Branch involved. It asked if the request could be narrowed and suggested that the applicant specify a year or type of records.
On 6 February 2019, the applicant said that it was seeking access to Revenue’s correspondence and internal documents relating to its consideration of its annual corporation tax (CT) returns - generally only one such return filed each year. It said that the request could be limited to the Revenue’s consideration of CT on the applicant’s trading activities and that it does not include other taxes such as VAT or PAYE or correspondence or documents relating to such matters.
On 11 February 2019, the Revenue told the applicant that it had not materially changed the original request. It asked again if the request could be narrowed and if a year or type of records could be specified. The applicants’ reply of 14 February 2019 said that it would reduce the timeframe of requested records to 2001 to 2014.
On 18 February 2019, the Revenue said that the amount of records involved was in the thousands and that 2001-2014 is too broad a range of records to request. It asked the applicant to narrow the request to a particular year. It also said that correspondence and internal documents “can include a great many documents” and asked for confirmation of the exact type of documents required.
The applicant told the Revenue on 21 February 2019 that its request is limited to documents from 2001 to 2014 relating to the Revenue’s consideration of its annual CT returns. It said that it generally filed only one such return each year. It asked how many thousands of records had been identified as covered by the request, which it said was a surprising amount. It said that if the Revenue could give an estimate of the volume of responsive records for each year, it can then consider how it might be able to further narrow the request.
On 22 February 2019, the Revenue told the applicant that unless it specified the exact nature of records sought, its request for records relating to 14 years of CT returns remained too broad. It said that, further to a cursory look, it had estimated the request as covering approximately 200 records for each year. It said that a record could contain a significant number of pages and reiterated that the request was too broad to process.
On 14 March 2019, the applicant said that its current refined request sought “[a]ll correspondence, briefing notes, memoranda, reports, advice, notes of consultations and meetings, minutes, attendances and any other records relating to [the Revenue’s] consideration of all corporation tax returns filed by or on behalf of [the applicant] from 2001 to 2014“ (the revised request). It noted that there appeared to be to approximately 2,800 records covered by the revised request. It said that the Revenue appeared to have identified and located the records concerned and thus that the outstanding issue appeared to relate to copying fees. It asked for details of the fees, which it said it might be prepared to pay. The applicant stressed that the records relate entirely to its own tax position. It said that it “requires all of its tax records” for litigation arising from a Revenue tax assessment and that it was already prejudiced in this regard “by the fact that certain records which were previously held by [the applicant] and its tax advisors have been destroyed in line with relevant document retention policies.” It said that if it cannot obtain the records under FOI it will have to bring the matter to the Court’s attention. It concluded by seeking confirmation that the documents will be provided, if necessary subject to proposed copying fees, and said that if the Revenue “did not intend to agree to [its] request please advise same so that a formal appeal can be initiated.”
The Revenue's decision of 22 March 2019 refused the revised request under section 15(1)(c) of the FOI Act, which provides that a request may be refused where, essentially, granting it could cause an unreasonable interference with the FOI body’s work. On 8 April 2019, the applicant sought an internal review of the Revenue's decision. It reiterated why it needed the records. It said that the Revenue had clearly identified and located them and that was willing to consider paying the relevant copying fees.
The Revenue's internal review decision of 29 April 2019 affirmed its refusal of the revised request under section 15(1)(c). It said that it estimated the request to cover between 2,800 and 3,000 records, which was based on a count of records for two of the periods in question.
On 13 May 2019, this Office received the applicant's application for a review of the Revenue's decision. I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Revenue and the applicant. I have had regard also to the provisions of the FOI Act.
This review is confined to whether the Revenue is justified in refusing the applicant’s revised request under section 15(1)(c) of the FOI Act.
At the outset, I will address some general comments made by the Revenue in this case. It says that the applicant has made a number of FOI requests in respect of the same issue and also that it should seek access to records under Discovery procedures. However, it is not relevant to my consideration of section 15(1)(c) whether the applicant has made other FOI requests generally in relation to CT matters. Furthermore, there is no barrier to a litigant seeking access under FOI to records that may be relevant to litigation.
The Revenue also says that the revised request seeks the same records as another request made by the applicant that was subject to my decision in Case No OIC-53438-Q7C0V8. That particular request sought access to all records that the Revenue relied upon when preparing a particular Notice of Amended Assessment relating to the payment of CT for a particular one year period. It is not clear to me why the Revenue considers that the two requests are the same. It is also worth mentioning that during the review in Case No OIC-53438-Q7C0V8, the Revenue confirmed that it had not considered the other request properly and that I accordingly directed it to carry out a fresh decision making process on that request.
Section 15(1)(c) of the FOI Act provides that a request may be refused where "in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.”
The Revenue’s submission says that it carried out a purely numerical exercise to determine the size of the task that would be required to deal with the request. It says that its decision maker looked at the hard copy folders of the applicant’s CT returns and related records for 2009 and 2010 and that these were found to contain about 100 records of various size per year. It says that the decision maker also looked at the soft copy folder containing the 2012 and 2013 CT audit files, which was found to contain about 500 records. Based on this review, the decision maker estimated that the overall number of records requested ranged from 2,800 to 3,000. The Revenue estimates that the overall number of pages in the records covered by the revised request could exceed 21,000. It also says that while records that are held on both soft and hard copy formats were not double counted, these would be considered different records for FOI purposes.
As noted earlier, the applicant says that it is surprised at the volume of records covered by its request, given that it makes only one CT return a year. The Revenue says that in certain years the applicant made amendments to its returns but that in any event, amended returns do not generally increase the number of records. It says that taxpayers such as the applicant will file an annual CT return that could contain more than 12 pages, and could also file supplementary returns. The taxpayer will also deliver a copy of the tax computation to the relevant Branch. The Branch will also often receive other lengthy reports that are relevant to particular tax credits, as was the case with the applicant. The Revenue says that the Branch will also generally receive correspondence from the taxpayer for administrative purposes such as in relation to offsets for preliminary tax, payment or repayments of tax following the filing of a return or the claiming of certain credits and other matters. It says that Revenue internal documentation may also be created, such as internal memos, internal verification reports, system printouts, calculations produced by various Revenue officials in relation to CT tax, internal emails between officials etc. It also says that if an intervention is carried out on a particular issue (such as a query arising from a particular credit claimed) a number of records arising from correspondence and information requests will be generated.
The Revenue also says that it is not just the collating of the records that is relevant to whether section 15(1)(c) applies. It says that they must also be scheduled, reviewed and where necessary redacted. It says that the relevant decision maker would have to consult with the applicant’s case manager to get contextual information of relevance to his or her decision. The Revenue says that applicant’s case manager is also the case manager for nine other similar taxpayers and is the sole officer with which a company group interact within the particular Division Branch. It says that the applicant’s Division Branch consists of a Branch manager and nine case managers and shares an administrative team of four officers with two other Branches in the same Division. The Revenue says that even examining the records with a view to determining a general outline or description of them would be a substantial task to complete.
Finally, the applicant’s application to this Office refers to certain parts of an affidavit filed by a Revenue official in the litigation. The applicant contends that the Revenue has clearly considered records relevant to that part of the affidavit and that they should fall to be released accordingly. The Revenue’s submission says that the official would have reviewed a portion of the documents falling within the scope of the request solely for the purpose of arriving at the conclusions stated in the affidavit. It says that this is a substantially different type of review to what is required when considering whether records are exempt under the FOI Act.
On 26 August 2019, this Office’s Investigator gave the applicant a summary of the Revenue’s submission. In response, it says that the Revenue has incorrectly interpreted the request as seeking copies of the actual documents that the applicant filed with the Revenue on an annual basis. It says that it is seeking records relating to the Revenue’s consideration of such filed material. Secondly, the applicant says that the Revenue has averred on affidavit that it did not carry out any detailed interrogation of the company’s tax returns before 2016/2017. It says that accordingly there should be no, or very few, records relating to Revenue’s consideration of its filed returns until 2016/2017. The Investigator invited the Revenue’s comments on these matters.
The Revenue says that it contacted the applicant on several occasions to ask it to specify the exact nature of records sought. It refers in particular to the applicant’s email of 14 March 2019. Its position is that the applicant did not at any stage specify that it was not seeking the records it filed on an annual basis, which it describes as consisting mainly of CT1 and other returns, financial statements and CT computations. It says that in any event, such material amounts to roughly 200 records and that approximately 2,600 records (circa 15,000 pages) remain covered by the scope of the revised request. The Revenue describes the 2,600 records as including system printouts, reports drafted by the Revenue’s officials, meeting notes and correspondence between the Revenue and the applicant. It also says that such correspondence includes standard administrative correspondence and supplementary information forwarded by the applicant in the course of its filings.
It says that it remains open to the applicant to specify which types of record that it requires and which may be excluded and in that event, that it may be able to provide the necessary documentation. It says that if this was agreeable to the applicant it would be willing to have its decision annulled so that it could make a new decision accordingly. It is important to say at this stage that my review is concerned with whether the Revenue’s decision on the revised request is justified under the FOI Act. If I am satisfied that this is the case, the question of annulling the Revenue’s decision does not arise. For the avoidance of any doubt, I should also say that I do not consider the Commissioner to have any role in negotiating or determining how the request may be modified so that its scope is acceptable to both the Revenue and the applicant.
The applicant’s revised request covers records from 2001 to 2014, which is a considerable timescale. I note the Revenue’s position that even with the recent clarification of the revised request, it will still have to examine approximately 2,600 records to decide whether they are exempt in full or in part under the FOI Act. I have no reason to dispute this. On its face, the revised request clearly seeks a wide range of internal Revenue documentation such as briefing notes, memoranda, reports, opinions, advice, notes of consultations and meetings, minutes and attendances. It also seeks “[a]ll correspondence” which, on its face, covers not only internal Revenue correspondence but also all types of correspondence between the Revenue and the applicant. In particular, however, the revised request seeks “any other records relating to the Revenue’s consideration of [the applicant’s] CT returns”. On its face, this part of the request is very broad and covers all material filed with the Revenue by the applicant. The applicant only very recently clarified that it did not intend to seek copies of the documents it filed with the Revenue on an annual basis but it seems to me to leave open the question of whether it is seeking copies of any documents it may have filed with or provided to the Revenue outside of the annual submission process.
In this regard, the applicant appears to suggest that I should find section 15(1)(c) not to apply to that part of the request that seeks records dating from before 2016/2017. It contends that there should not be many records involved and I also note that the Revenue acknowledges that there is a higher volume of records concerning 2016/2017 onwards. However, as I have already said, my review is concerned with the Revenue’s refusal of the totality of the revised request under section 15(1)(c). I do not consider it appropriate to examine whether the provision might apply to a particular subset of records covered by the request. It follows that I hold the same position in relation to those records that were referred to by the Revenue official in preparing an affidavit. I will also say, however, that I agree with Revenue’s position that the process of reviewing records for the purpose of deciding on an FOI request is an entirely different exercise to what would be required in reviewing such records for the purpose of preparing an affidavit.
In my view, the revised request, even as most recently clarified, could cover an unreasonably broad range of records. While it may be relatively straightforward to identify the records concerned, I accept that the process of examining them to decide whether they are exempt under the provisions of the FOI Act would result in a substantial and unreasonable interference with or disruption to the work of the Revenue and in particular, the particular Division branch. However, this is not the end of the matter. I must also consider section 15(4).
Section 15(4) provides that section 15(1)(c) shall not be applied to a request unless the FOI body has assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within that section.
While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
I have already described the Revenue’s contacts with the applicant further to the request it made in this case. The applicant’s position is that its request is reasonable and was specific enough. Nonetheless, as I have said, it covers an unreasonably wide range of records and includes “all records relating to” the Revenue’s consideration of the CT matters and all types of “correspondence”. Even its most recent contacts with this Office do not seem to definitively exclude all documents that it may have filed with or provided to the Revenue.
It is reasonable to assume that the applicant in this case has access to legal and other advisors that can identify certain types of correspondence, reports etc. that it is most and least interested in obtaining. It is unclear to me why it could not have described such records to the Revenue. In this regard, the Revenue says that while the applicant’s email of 6 February 2019 excludes records relating to VAT and PAYE, such records do not generally relate to a company’s CT/trading activities and that it would not have in any event have considered them to be covered by the request. I also note those parts of the applicant’s email of 14 March that say it requires all of its tax records, that certain of its own records (which one would generally expect to include copies of filed annual returns rather than internal Revenue documentation) have been destroyed and that also refers to bringing the matter to the attention of the Court. These comments only serve to reinforce the impression that the revised request intended to seek as broad a range of records as possible, including all records that the applicant lodged with or sent to the Revenue between 2001 and 2014.
The FOI Act places various requirements on FOI bodies that must be complied with. However, the provisions of section 15(1)(c) indicate that, given the ensuing administrative burden on FOI bodies, the Oireachtas expects requesters to behave reasonably when making FOI requests. While there is an onus on FOI bodies to assist, or at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held. Nevertheless, in this case, the applicant had the opportunity to meaningfully engage with the Revenue as regards what records it required. It is also noteworthy that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. In such circumstances, the difficulty with requesters making broad or non-specific requests, such as a request for all records relating to a particular matter becomes apparent. In this regard I note that the applicant’s email to the Revenue of 14 March 2019 says that it “requires all of its tax records” notwithstanding that the Revenue had made it clear that an excessive amount of records would be involved.
Having considered the matter carefully, I find that the Revenue has complied with the requirements of section 15(4) and that section 15(1)(c) applies to the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Revenue’s refusal of the applicant’s request under section 15(1)(c) of the FOI Act.
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.