Whether the Revenue was justified in refusing access to a record concerning contacts between the applicant and the Revenue about the applicant’s tax affairs
26 September 2019
The applicant, specifying its company name and Tax Reference Number, made an FOI request to the Revenue on 17 January 2019 for all records concerning meetings or conversations which occurred in a particular timeframe between its officers or agents and the Revenue. The Revenue’s decision of 20 February 2019 released some records and relied on sections 29(1) (deliberative processes), 30(1)(a) (audits by an FOI body) and 30(1)(c) (negotiations of an FOI body) in relation to the rest. On 14 March 2019, the applicant sought an internal review of the Revenue’s refusal of four records, including record 13. The Revenue’s internal review decision of 5 April 2019 fully released three of the records and brief excerpts from record 13. I note that amongst the details released from record 13 are the names of various companies, including the applicant, within a company group. The Revenue withheld the rest of record 13 under the FOI provisions set out above.
On 19 April 2019, this Office received the applicant’s application for a review of the Revenue’s refusal to fully release record 13.
I have now decided to conclude this review by way of a formal, binding decision. I have carried out my review in accordance with section 22(2) of the FOI Act and have had regard to the above exchanges and correspondence between this Office, the Revenue and the applicant. I have also had regard to the contents of record 13 and to the provisions of the FOI Act.
Scope of the Review
This review is confined to whether the Revenue was justified in its decision on record 13.
In making my decision in this case, I have had regard to certain general matters. Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.
Furthermore, section 18(1) of the FOI Act 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 resulting copy would be misleading (section 18(2) refers). While the Revenue has released parts of record 13, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extraction of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Is record 13 fully covered by the request?
Record 13 comprises an internal Revenue profile relating to a company group and the various companies (including the applicant) that make up that group. On 5 September 2019, this Office’s Investigator notified the applicant that its FOI request specifically sought records relating to itself. She said that the other companies are different entities and taxpayers and that most of record 13 thus appeared to her to be outside the scope of the FOI request. She also explained that the Commissioner has no remit to consider directing the release of such details. The applicant did not make any comment in response.
I have considered whether record 13 is covered by the request in full or in part. It contains some brief specific references to the applicant. It also contains some brief specific references to other companies within the group, which are separate taxpayers. However, it also contains some general joint references to all of the companies within the group. In the circumstances, I have taken the view that the record is within the scope of the request.
The Revenue’s contacts with this Office refer generally to section 35(1)(b) but do not make any arguments as to why it applies. However, it is appropriate for me to consider the application of the provision given its mandatory nature and the particular contents of record 13.
Section 35(1)(b) of the FOI Act requires the refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or 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.
In her contact with the applicant of 5 September 2019, the Investigator also said that, in any event, section 35(1)(b) could apply to the record on the basis that the Revenue owes a duty of confidence to the other taxpayers referred to in it. As noted above, the applicant did not respond.
Generally speaking, section 851A(1) of the Taxes Consolidation Act 1997 (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 the Revenue Commissioners or 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.
While I am satisfied that record 13 contains taxpayer information about the applicant, it also contains information about other taxpayers that are within its company group. The FOI request, internal review application and application to this Office all clearly identified the applicant as one company linked to one tax reference number and made no reference to the group as a whole. I am satisfied that the Revenue owes those other taxpayers a duty of confidence further to section 851A of the TCA. Section 851A of the TCA is not listed in column (3) in Part 1 or 2 of Schedule 3 to the FOI Act. I accept that releasing information about the other taxpayers within the company group to the applicant would constitute a breach of a duty of confidence provided for by an enactment.
It is well established that an action for a breach of confidence is subject to a public interest defence. This Office notes that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow. Such grounds which the Courts have had regard to include the exposure or avoidance of wrongdoing or danger to the public; ensuring the maintenance of the principles of justice; the release of what could generally be described as "government" information; and because information concerns matters of very significant public importance. In my view, there is no basis for setting aside the requirements of section 35(1)(b) in this case. The applicant explains why it needs the record. I note that it has taken legal action against the Revenue and that it says that there is considerable public interest in those proceedings, including the importance of certainty for taxpayers. However, I do not consider that I can make a finding to the effect that the duty of confidence owed in this case by the Revenue to the third parties should be breached in order to disclose confidential taxpayer information to the world at large under FOI on the basis of the applicant’s reasons for seeking the record or its views on the importance of the litigation. I find that the references to the other taxpayers are exempt under section 35(1)(b) of the FOI Act.
I have noted the provisions of section 35(2). Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider." I am satisfied that the other taxpayers that are referred to in record 13 are not service providers within the meaning of the FOI Act. Thus, I find that section 35(2) does not apply in this case. I should also say that while the Revenue did not refer to the mandatory exemption at section 41(1)(a) of the FOI Act, it is open to a public body to consider whether that exemption could be applied to a record on the basis that disclosure of the relevant information is prohibited by an enactment.
The applicant may consider that I should direct the Revenue to grant access to those brief parts of record 13 that refer only to it. It should be noted that the Revenue considers sections 29 and 30 to apply to the record in any event. However, I do not intend to consider the applications of these provisions given that I am satisfied that it would not be in keeping with the Commissioner’s approach to section 18 to direct the Revenue to grant access to the excerpts concerned. Furthermore, such a direction could render the ensuing copy of the record to be misleading.
Payment of OIC Application Fee
The applicant’s suggests that it is not required to pay an application fee to this Office because the record relates to it and is its personal information. The FOI Act requires applicants to pay a fee to this Office where the review concerns access to non-personal records. I note that section 2 of the FOI Act defines “personal information” as “information about an identifiable individual …”. The applicant is a corporate entity rather than an identifiable individual. Thus, I do not accept that this review concerns access to personal records and I see no reason for the application fee to be refunded.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Revenue’s refusal of the rest of record 13 under section 35(1)(b) of the FOI Act.
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.