Whether the Revenue was justified in refusing to grant full access to a record concerning trading positions considered or determined by the Revenue’s trading committee relating to trading activities of companies holding Shannon or IFSC certificates
26 September 2019
The applicant’s FOI request of 4 February 2019, as refined on 14 February 2019, sought access to all records relating to “[a]ll trading positions considered or determined by the Revenue’s trading committee (or any analogous committee) which relate to trading activities of companies holding Shannon or IFSC certificates where any of the following arises – (a) such companies were considered by Revenue not to be trading; (b) where Revenue refused tax relief to such companies under S445 TCA; or (c) where Revenue considered whether such Shannon or IFSC entities were or were not trading post 31 December 2005 for previously certified trading activities.”
The Revenue’s decision of 8 March 2019 concerned one record. Pages 1 to 4 comprise an email and pages 5 to 19 comprise attachments to the email. It granted partial access to pages 1 and 2. It decided that pages 16 to 19 were not covered by the request and that sections 35(1)(b) (duty of confidence), 36(1)(b) (commercially sensitive information) and 37(1) (personal information) applied to the remainder.
On 27 March 2019, the applicant sought an internal review of the Revenue's decision and also said that the email contains attachments that the Revenue had not considered. In its internal review decision of 16 April 2019, the Revenue released further information from page 3 and affirmed its refusal to release the remainder of the record. On 24 May 2019, the applicant made an application to this Office seeking a review of the Revenue's decision on pages 4 to 19. It said that it did not want any third party identifying information.
During the review, the Revenue located further attachments to the record. It released these and pages 16 to 19 subject to the redaction of names, initials and email/postal addresses of identifiable individuals.
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 and the record considered by the Revenue.
Scope of Review
This review is confined to whether or not the Revenue's refusal of pages 4 to 15 of the record is justified under the FOI Act.
In making my decision in this case, I have had regard to certain general matters. 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 details from certain records while redacting other parts, 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.
Furthermore, 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. Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
In the overall circumstances, section 35(1)(b) seems to me to be the most appropriate exemption to consider in this case. 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.
The applicant says that the Revenue has redacted the record excessively. It says that any identifying third party information can be redacted. It refers to the tests for an equitable duty of confidence (i.e. a duty of confidence that is provided for otherwise by law), which it says are the requirements for breaching a duty of confidence. It says that section 35(1)(b) cannot be claimed particularly in relation to records emanating from the Revenue in the form of guidelines or correspondence to taxpayers (assuming the redaction of identifying information).
The applicant says that in the interests of transparency and equality of treatment of taxpayers, communications by Revenue should not attract a duty of confidence (subject to the exclusion of any personal information on the recipient). It refers to ongoing litigation it has taken against the Revenue. It says that there is considerable public interest in those proceedings, including the importance of certainty for taxpayers. It says that it has a material interest in obtaining the record in full.
The Revenue says that section 35(1)(b) applies on the basis that the withheld information comprises confidential taxpayer information. It says that section 851A of the Taxes Consolidation Act 1997 (the TCA) requires the Revenue to treat such information as confidential and that it can only be released in the very limited circumstances set out in that provision.
Revenue is claiming that disclosing the records would result in breach of a duty of confidence provided for by a provision of an enactment, rather than an equitable duty of confidence. 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 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.
I am satisfied that pages 4 and 5-15 comprise taxpayer information and that the Revenue owes the parties to which the information relates 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 granting access to the withheld information 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. While the applicant says that there is a public interest in the legal proceedings, 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 records 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 parties to which the information relates are not service providers within the meaning of the FOI Act. Thus, I find that section 35(2) does not apply in this case.
The Revenue considers certain parts of the withheld pages to be exempt under sections 36 and 37 rather than section 35. I do not intend to consider the applications of these provisions given that I am satisfied that the 19-page record in its entirety relates to the tax affairs of parties other than the applicant. I accept that the Revenue’s decision to grant partial access to the record further to section 18 was clearly in the spirit of the FOI Act. I note that in so doing, it had regard to that part of section 851A which provides that taxpayer information does not include information that does not directly or indirectly reveal the identity of the person to whom it relates. I also note that the applicant argues that third party information could be redacted from the withheld pages and thus that further excerpts could be released.
It seems to me that the relevant part of section 851A is concerned with references to taxpayer issues in more general records, such as policy related documentation for instance, and is intended to ensure that such papers are not categorised as containing taxpayer information such that they cannot be disclosed or published. While granting partial access to records may be appropriate in the case of a taxpayer seeking access to their own records, I do not consider that the relevant part of section 851A intends to provide for granting partial access to records that as a whole contain third party taxpayer information for the purposes of section 18 of the FOI Act. In addition, while 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.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Revenue’s refusal of pages 4 to 15 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.