Case number: 090163

The Commissioner affirmed the Revenue's refusal of the records under section 26(1)(b) of the FOI Act.

Case Summary

Whether the Revenue is justified in refusing records concerning claims for the Dual Abode Allowance (the DAA) for the years 2005-2007, as requested by the applicant under section 7 of the FOI Act. The Revenue withheld the records under a number of provisions of the FOI Act, particularly section 26(1)(b), in that Revenue claimed that the records contained information provided to it the disclosure of which would result in a breach of the duty of confidence owed to the claimants. It also claimed that sections 23(1)(a)(ii) and 28(1) were applicable to the details.

Date of Decision: 10.09.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The DAA

Section 114 of the Taxes Consolidation Act, 1997 (the TCA) provides for the reduction in a person's taxable income by the amount of expenses incurred and defrayed exclusively and necessarily in the performance of the duties of their office or employment (whether public or private sector). Section 836 of the TCA provides that, while section 114 shall not apply to expenses in full settlement of which an allowance is payable under section 3 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992, where "a Minister of the Government, the Attorney General or a Minister of State, being (a) a member of Dáil Éireann for a constituency outside the county borough and the administrative county of Dublin, or ... is, arising out of the performance of his or her duties as an office holder or as a member of the Oireachtas, obliged to maintain a second residence in addition to his or her main residence, he or she shall be granted a deduction under section 114 in respect of expenses incurred by him or her in maintaining that second residence." This is known as the Dual Abode Allowance (DAA).

The Revenue's submission to this Office of 19 February 2010 states that the DAA is an extension of the relief available under section 114, while its internal review decision states that "[i]n order to qualify for a tax deduction under section 114 of the TCA 1997 the relevant expenditure claimed as a deduction, must have been incurred and defrayed by the taxpayer wholly, exclusively and necessarily in the actual performance of the duties of the office or employment".

I understand that the DAA can be claimed in one of the three following ways:

1: Where the second residence is owned by the office holder, he or she can claim:

- an allowance equivalent to the annual mortgage/home loan interest paid on the home loan taken out for that residence; and

- if the second residence is acquired during the term of office, the costs of acquiring the residence other than capital cost (i.e. auctioneers fees, solicitors fees, and, as I understand it, stamp duty); and

- the vouched costs of maintaining a residence (light, heat, repairs, insurance) OR a flat rate allowance of 6350 euro p.a.

2: Where the second residence is rented by the office holder, he or she can claim:

- an allowance equivalent to the actual cost of renting the accommodation; and

- the vouched costs of maintaining a residence OR a flat rate allowance of 4500 euro p.a.

3: Where the office holder uses hotel accommodation as a second residence, he or she can claim:

- an allowance equivalent to the actual cost of room rental; and

- the vouched costs associated with maintaining a second residence in a hotel OR a flat rate allowance of 3500 euro p.a. This flat amount can also be claimed by an officeholder who uses the home of a relative or friend as a second residence.

I understand that claims for DAA based on expenses incurred in 2005-2007 can be made up to 2009-2011, as appropriate. Details released on foot of the request in this case stated that, for:

  • 2005: 18 Ministers/Ministers of State claimed €250,267.50 under the DAA scheme, on which the tax relief granted at a rate of 42% was €105,112.35;
  • 2006: 15 Ministers/Ministers of State claimed a total of €218,453, the tax relief granted on which (again at 42%) was €91,750.26; and
  • 2007: 16 Ministers/Ministers of State claimed €215,451, the tax relief granted on which, at a lower rate of 41%, was €88,334.91.

As is evident, tax relief was granted for each application based on the full amount claimed.

I will refer in this decision, to the various individuals who sought and received the DAA in the years 2005-2007, as "the claimants".

Outline of the FOI Process to Date

The Applicant's original request, received by the Revenue on 21 April 2009, sought "all records relating to the [DAA] for the years 2005, 2006 and 2007", including "the names of the Ministers who claimed the allowance; details of how much each claimed; and details of what was claimed." It also sought "a breakdown of each Minister's claim and/or receipts" and details of "any other correspondence between Ministers and the [Revenue] in relation to the allowance since 2005." While this could be interpreted as including correspondence (and records of claims themselves) for 2008, the Applicant confirmed to my Office that this element of the request may be confined to correspondence concerning the allowances claimed for the years 2005-2007.

The Revenue's decision, dated 19 May 2009, provided the applicant with a breakdown of overall figures relevant to the request, as set out above. However, it refused to release the actual records containing the details of the individual claims (and thus identifying the claimants) on the grounds that they contained personal information and were exempt under section 28(1) of the FOI Act. It also refused the details under section 23(1)(a)(ii) of the FOI Acts, finding that the release of the records would "prejudice or impair...the enforcement of, compliance with or administration of any law" (the law concerned being the Taxes Acts).

The Applicant sought an internal review of this decision, which was received by the Revenue on 22 May 2009, on the basis that there was "an overwhelming public interest to releasing the details of the Dual Abode Allowance scheme" which amounted to information regarding "the expenditure of taxpayer's money by elected representatives." The Revenue's internal review decision, dated 12 June 2009, provided the Applicant with copies of the relevant application forms and an explanatory leaflet. However, it upheld the earlier refusal of the requested records and also cited section 26(1)(b), on the grounds that the Revenue owed the claimants a duty of confidence in relation to the details at issue. The applicant sought a review by my Office in an application received on 25 June 2009.

I understand that a more detailed breakdown of the details provided to the applicant on foot of the request has been published outside of FOI via the Revenue's Press Office. However, it became clear in the course of the review that it would not be possible to reach a settlement that would be agreeable to all of the claimants and the Revenue and so I have decided to conclude this case by means of a binding decision. I note that the Applicant did not take issue with this approach.

Much consideration was given by my staff and I to the question of whether or not the Revenue could owe a duty of confidence to the claimants in respect of deductions sought on the basis of expenditure "incurred and defrayed" by them "wholly, exclusively and necessarily in the actual performance" of their Ministerial duties. Accordingly, I have had regard to the considerable correspondence in this regard between Ms Anne Moran, Investigator in this Office, and both the Revenue and the claimants. Having carefully considered the matter, however, Ms Moran subsequently outlined a view to the applicant that disclosure of the information at issue to the world at large would be a breach of the equitable duty of confidence owed by the Revenue to the claimants concerned.

In response, the Applicant argued that it was in the public interest to know the names of the Ministers who had availed of the DAA, and thus the names of the claimants, should be released. He referred to how the names of those in receipt of the Artists' Tax Exemption were disclosed by the Revenue, on foot of an application for review made to this Office that considered whether or not such details should be published further to the FOI Act.

In carrying out the review that has informed my decision in this case, I have had regard to the provisions of the FOI Act; the correspondence referred to above; to copies of the records at issue (provided to my Office for the purposes of this review); and, in respect of the question of the extent to which the Revenue holds records of relevance to the request, details of a meeting between Ms Moran and Mr Sean Garvey, Senior Investigator in my Office, and the Revenue.

Conducted in accordance with section 34(2) of the FOI Act, by Emily O'Reilly, Information Commissioner.

Scope of the Review

This review is confined to the issue of whether or not the Revenue's refusal of the applicant's request (whether in full or in relation to the identities of the recipients) is in accordance with the terms of the FOI Act.

In submissions made to my Office, a number of claimants stated their belief that publicity will be given to the amounts claimed, as opposed to the benefit actually granted, and expressed concern over the headlines that they believe may be generated accordingly. While it was argued by at least one claimant that I should have regard to such beliefs, my review must have regard to section 8(4) of the FOI Act, which states that, "in deciding whether to grant or refuse to grant a request under section 7, (a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded".

Relevance of "Artists' Tax Exemption Case"

As noted above, the Applicant submitted that, at least, the names of the claimants should be disclosed, similar to the outcome of this Office's review (finalised in July 2002) on a request made to the Revenue for access to the identities of those qualified for the artists' exemption from income tax. However, it should be noted that this outcome (in respect of which I understand that the identities of those who had benefitted from the "Artists' Tax Exemption" from 1998 to 2002 were eventually published in 2005, following a consultation process) was achieved on foot of a settlement agreed between this Office and the Revenue; as noted above, it has not proved possible to achieve a settlement in this case.

Similarly, while the Applicant has also referred me to the disclosure in the UK of details concerning claims for the Additional Costs Allowance payable to certain Members of Parliament (the ACA), it is relevant that the DAA system (payable through the taxation system) differs to that of the ACA scheme. According to the Revenue, the main differences between the two schemes are that, unlike the DAA: the ACA is not administered through the tax system but through reimbursement of exchequer funds by the Parliamentary Fees Office of the Houses of Parliament; 621 of the 646 MPs are eligible under the ACA scheme, irrespective of whether or not they hold a ministerial portfolio; expenses (including food, electrical and household goods and subscription packages) are reimbursed in full; and the ACA scheme does not contain any provision to prevent MPs from changing the designation of the second home as often as they wish ("flipping"), thus enabling claims for reimbursement of the cost of furniture and refurbishment of more than one property and the avoidance of Capital Gains Tax on the profits from the sale of a second home.

In short, the issue of the previous settlement and the approach taken in a different jurisdiction to the payment of monies further to an entirely different scheme are irrelevant to my consideration of whether or not the provisions of the FOI Act are relevant to the records at issue in this case.

Records At Issue

I will now set out a brief description of the extent to which the Revenue holds records of relevance to the request.

The Revenue has confirmed that it examined all claims received from 2005 up to the date of the applicant's request and is satisfied that all records, concerning expenses incurred in the years 2005-2007 that existed as at the date of that request, have been identified. I note that Ms Moran made various enquiries as to the existence of further such records and I am satisfied with the Revenue's responses. [It should be made clear that further claims for the years at issue could have been submitted since the date of the request; however, these are outside the scope of my review].

I note that the Revenue did not provide the Applicant with a schedule of the records concerned. Although the FOI Act does not require the production of a schedule, and thus this Office is unable to require the Revenue to create one, I note that it does not object to disclosure of the fact that the records concern claims made by 21 individuals. I describe below these records in general terms, subject to the requirements of section 43(3) of the FOI Act, which requires that I shall not disclose, in the course of a review, any details within a record that the public body claims require it to be exempt in the first place.

Claim Forms

Not all claimants have submitted completed, written, DAA claim forms (I understand that such forms are not statutorily required).

It also seems that there is no specific category under which claims for the DAA may be made as part of a tax return (either when submitted manually or via the on-line system). Thus, relevant claims are made under the category of "Expenses" (which encompasses various expenses for which tax rebates may be sought, such as the cost of cleaning uniforms, buying tools etc). Thus, there are some records of tax returns that merely show an amount claimed under the heading of "Expenses" (which may, or may not, have a corresponding claim form).

Documentary Evidence

Documentary evidence of expenses incurred has been provided with only a small number of claims the subject of the review. The Revenue submits that DAA claims are subject to audit in the same way as any other claim for tax relief, and that DAA claimants are expected to retain documentary evidence of expenditure for any audit inspections for which they may be selected. However, it seems that claimants are not required to provide such evidence with their initial claim (presumably, no evidence is required at all where claiming the flat allowance).

Records of Claims Granted

With the exception of a record relating to one claimant (an email containing a passing reference to the benefit that would accrue on foot of a particular claim), the Revenue has stated that it holds no records showing the net benefit accruing from the claims made.

I understand that any claim for relief made by a tax payer deemed by the Revenue to be a "Sensitive Case", such as a Minister or Minister for State, requires a full tax assessment to be carried out. This contrasts with claims for relief made by PAYE taxpayers (such as in relation to health expenses) that do not, generally, require a full tax assessment.

The Revenue explains that, as DAA claims are part of overall tax returns, they are one of many 'ingredients' relevant to the calculation of a claimant's overall tax liability, and that a "tax deduction, therefore, does not bestow any 'specified amount' to the claimant: the net benefit to the claimant depends on the entirety of the ingredients (income, deductions, allowances, losses, credits, etc - of both the individual and the individual's spouse) that are taken into account in computing the tax liability." It seems that the notice of overall tax liability, generated on foot of a tax return, does not specify the net value of each such 'ingredient', and thus, Revenue's position is that there exists no records showing details of specific DAA claims granted (with the exception of the previously mentioned email). Ms Moran and Mr Garvey visited the Revenue's offices and, having observed the process through which DAA claims are submitted, are satisfied that the above is the case.

However, as will be evident from the data published by the Revenue, the appropriate marginal (higher) rate was applicable to the total amount of relief granted in the years 2005-2007. Thus, a claim for DAA on the basis of €1000 expenditure incurred in 2007 would have resulted in net relief of €410 being offset against the taxpayer's total tax liability for that year. Accordingly, while no records showing details of tax revenue foregone on foot of the individual DAA claims exist in this case (bar one), it would be possible to calculate the figures concerned by having regard to the applicable tax rates and the total amount claimed by a taxpayer in a particular year. This obviously requires access to the original claim forms or the relevant excerpt of a tax return.

Other

There is also correspondence with certain of the third parties verifying aspects of particular claims.

Taxation Details Other than the DAA

The Applicant does not require details of the addresses of primary residences or of the residences the subject of the DAA claims, PPS numbers or other personal details. Neither does he require details of the staff members of the Revenue who dealt with the claims the subject of this case. Such details are accordingly outside the scope of my review.

Submissions

Submissions Received

The Revenue and the claimants submitted that the records are exempt under sections 23(1)(a)(ii), 26(1)(a), 26(1)(b), 28 and 32 of the FOI Act. It seems to me if I am satisfied, in the circumstances of this case, that the records are exempt under section 32 of the FOI Act, or that a duty of confidence is owed by the Revenue to the claimants, the issue of whether some or all of the records at issue may be exempt under some of the other provisions cited by the parties to the review is irrelevant. Accordingly, rather than set out the arguments made in respect of each provision relied on, I will set out below the main points of the submissions made in respect of the application of sections 26(1)(b) and 32, and my findings thereon.

The Revenue

Below is a general outline of the various arguments made in the Revenue' decision, internal review decision and submissions to this Office.

The Revenue Customer Charter

Various references are made to this, which states that the effective and fair administration of tax and customs law requires the Revenue and citizens to recognise certain basic rights and responsibilities ("mutual expectations"). Under the heading of "Consistency, Equity and Confidentiality", the Charter states that the Revenue "will administer the law fairly, reasonably and consistently and will seek to collect no more than the correct amount of tax or duty" and that it "will treat the information [it receives] in confidence and ensure that it will not be used or disclosed except as provided for by law". The Charter says that clients can expect "to be treated ... in a non-discriminatory way" in their dealings with the Revenue.

Section 26

The Revenue considers the expenditure the subject of the claims to arise from accommodation arrangements that may be heavily influenced by private or family considerations and, "although concomitant with the exercise of the duties of the office, are nevertheless exclusively concerned with how the taxpayer orders his or her private life and personal living arrangements. In this regard, they should be considered as consequent on but not directly concerned with the exercise of the duties of the office and are essentially of a most private and personal nature." Although argued in relation to the application of section 28 to the records at issue, I consider the above to be relevant to my consideration of the nature of the information claimed to be subject to a duty of confidence.

The Revenue also considers that Ministers should be entitled to the same degree of privacy in dealings with the Revenue as any other taxpayer due to the "most private and personal nature" of the records at issue. It reiterates that a breach of this duty of confidence "would have a profound effect on Revenue's relationship with all taxpayers."

The Revenue also states that it "does not accept that [s]ection 26(1)(b) is qualified by any public interest considerations" or that it requires the consideration of defences to an action for breach of confidence. It also considers that, even where the public interest defence is raised in an action for breach of confidence, it involves more than a balancing exercise such as that provided for at section 28 of the FOI Act, in that consideration should be given as to whether the sort of public interest that is being invoked "could be sufficient as a matter of law to override the duty of confidence." The Revenue noted that, traditionally, defences to a breach of a duty of confidence required it to be shown that there was "some underlying dishonesty, fraud, breach of the law or some equally serious iniquitous act which it was sought to protect from disclosure." At this point, I should stress that there are no allegations of wrongdoing on the part of the claimants in this case. The Revenue submits that, while the law in this regard has expanded somewhat, the fact that there may be some public interest in release is not sufficient, and that it must be the sort of public interest "whereby disclosure would be genuinely beneficial to the public, such as information concerning potentially dangerous medicines, inadequacy of safety and health inspections, possible early release of serious criminal offenders or something of that nature; in other words it must be something that really matters to the public (whereas in this case the disclosure would be to the media)."

The Revenue refers me to comments I made in my unpublished decision in case 020288 where I found that there were very strong public interest arguments against the release of a taxpayers' personal information to a third party, and found that all taxpayers have an expectation that their dealings with the Revenue will be treated in strict confidence and will not be disclosed to third parties apart from certain limited information that is published from time to time in certain circumstances. It also refers to a previous decision issued by me which dealt with tax records held by the Revenue (case 030624, in which I affirmed the Revenue's refusal of an FOI request for records relating to a tax settlement involving the late Mr Charles Haughey), which it considers to be fully supportive of its position in relation to the case at hand. In particular, it notes that I stated that the grounds on which a public interest defence to a breach of a duty of confidence may be sustained were quite narrow (including, "for example, the revelation of wrongdoing or danger to the public)." It also notes that I found the records concerned not to reveal any wrongdoing, and that I could not identify any particular public interest defence ground supporting their release. The Revenue contends that I should find similarly in the case at hand.

Finally, the Revenue also refers me to my decision in case 060030 (Ms Y and the HSE, on the Office website www.oic.ie) , in which I considered that public interest considerations may be taken into account in deciding whether or not a duty of confidence applies, specifically in that case the Constitutional rights of the Applicant to fair procedures. It is Revenue's view that every citizen must similarly be "afforded due regard to his/her immutable constitutional rights to fair and equitable treatment under the law. In claiming a tax deduction in respect of the [DAA] the claimants are first and foremost citizens of this State ...[who] ... are availing of a tax deduction that is provided for by statute."

The Claimants

Ms Moran wrote to the various claimants on 18 January 2010, seeking comments on her views that the details at issue should be released. Six claimants provided identical submissions in response to Ms Moran's letter of 18 January 2010. I set out below any details therein, that support the contention that sections 26(1)(b) and 32 are applicable to the records, which have not been referred to any extent in the Revenue's submissions.

Section 32(1)(a)

Having regard to Clarke J.'s comments in Doe v Revenue Commissioners [2008] 3 IR 328 (which the submission notes is binding on all inferior tribunals including myself) the six claimants argue that they have a "clear statutory entitlement" both under the provisions of the Taxes Acts and the Official Secrets Act "to have their tax affairs remain private." Thus, it is argued that, as the High Court "clearly conceived of the right to privacy in one's tax affairs as being of a statutory nature", section 32(1)(a) of the FOI Act should apply given that no taxation statutes are excluded from the application of that provision.

Section 26(1)(b) Duty of Confidence by way of Enactment

The submission refers to various provisions of the Taxes and other Acts that provide for the publication or transmission by the Revenue of certain information "notwithstanding any obligation to secrecy" or "restriction upon disclosure of information imposed by or under ..." taxes (or other) legislation, as well as a provision of the Taxes Acts imposing various obligations of non-disclosure on particular Revenue officials. It suggests that the existence of such provisions must mean that secrecy is already provided for by legislation, and claims that the Oireachtas "clearly considers" that the invasion of privacy in one's tax affairs should only occur in "specific rare and serious circumstances."

Section 26(1)(b) - Equitable Duty of Confidence

The submission, overall, considers that section 26(1)(b) reflects a choice by the legislature to the effect that FOI shall not, even in the public interest, trump duties of confidence. It is claimed that the authorities, on which I based my decision on the public interest aspect of section 26(1)(b) in case 060030, have no application to the case at hand, such as those which concerned the exposure of wrongdoing (which, as noted earlier, I accept is not the case here).

It is also claimed that the comments of Hardiman J. in O'Callaghan v Mahon and Others [2005] IESC 9 (from which I expressed an understanding that the "countervailing public interest extends [from the exposure or avoidance of wrongdoing] to include the 'maintenance of the principles of justice'") were based on the finding that fair procedures had not been adhered to in respect of the person seeking access to the records at issue, which is not analogous with seeking to disclose information to the public generally.

I am also cautioned that, even if the administration of justice requires the piercing of confidentiality in one's tax affairs, as Clarke J. said in Doe, "... a court will normally be careful to ensure that there is no unnecessary exposure of a person's tax affairs...". The submission also says that I should not consider myself "to be at large to make new law within Ireland as to the duty of confidence; rather [I] should be guided by the approach taken by the Irish courts to the interpretation of particular legal concepts". It claims that it is apparent from case law in this jurisdiction that only certain public interests fall to be taken into account in this regard, which are concerned with ensuring fair procedures to the person seeking to defeat confidentiality and defeating wrong doing.

General Arguments Made by Other Claimants (of Relevance to Section 26(1)(b) in particular)

It is claimed that it would be unfair to release details retrospectively, when the claimants were never told that this might be the case and understood that all tax details, including details pertaining to the DAA, would be kept confidential in accordance with the Customer Charter. The claimants say that changes in this confidentiality would have to be legislated for by the Oireachtas, and, while the TCA permits disclosure of details only in the most exceptional of circumstances, none are applicable here. Thus, a legitimate expectation of confidence arises.

Release of the details would be detrimental to the claimants' ongoing financial transactions outside of those relating to public office, as would disclosure of the amounts outstanding on mortgages (which it was claimed could be arrived at from the details at issue).

Findings

Section 32

Section 32(1)(a) provides that access to a record shall be refused where the disclosure of the record is prohibited by an enactment other than an enactment listed in the Third Schedule of the FOI Acts. If applicable to the records in the case at hand, no analysis of matters such as duties of confidence would be necessary. This is because the public interest is not required to be considered in respect of a record to which section 32 is applicable.

In his judgment in Doe v Revenue Commissioners, Clark J stated that "parties have a clear statutory entitlement ... under the provisions of the Taxes Acts ... to have their tax affairs remain private." He said that "[t]he high water mark of any constitutional rights to which the plaintiffs might be able to assert is limited, in my view, to an entitlement to have kept private any aspect of their affairs whose disclosure is not permitted by law for the time being in force.". As noted earlier, he also stated that "... a court will normally be careful to ensure that there is no unnecessary exposure of a person's tax affairs ...".

As there is no reference to any provision of "the Taxes Acts" in the Third Schedule to the FOI Act, certain of the claimants argue that section 32(1)(a) is relevant, having regard to the above judgement and to section 1086(3) of the TCA. This provision enables the publication by Revenue of certain details concerning those who have not complied with their tax obligations "[n]otwithstanding any obligation as to secrecy imposed on [the Revenue] by [the Tax Acts] or the Official Secrets Act 1963." I have been also referred to section 63A of the Criminal Justice Act, 1994 (as amended by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996), which provides for the disclosure of tax information by Revenue to the competent authorities where money laundering is suspected, again "notwithstanding any obligation as to secrecy or other restriction upon disclosure of information imposed by or under any statute or otherwise...".

However, no provision in the Tax Acts, that specifically prohibits the release of records relating to an individual's tax affairs (or indeed authorises the non-disclosure of such records), has been identified by the claimants, nor have I been able to find one. While the Revenue was asked to identify such a provision, and although it has referred me to the provisions referred to in the previous paragraph, and additional provisions containing similar wording, I note that it has not been able to identify any specific provision of the Taxes Acts which prohibits the release of records.

I am of the view that, in order for section 32(1)(a) to apply, there must exist a provision that explicitly and emphatically prohibits the release of such records, is clear in its meaning and effect, and can be interpreted only as prohibiting disclosure of the information in question. It appears to me that, in fact, there is no clear, explicit statutory entitlement under the Taxes Acts to have one's tax affairs "remain private". Furthermore, even if there is a statutory entitlement to this effect, it does necessarily amount to a prohibition on disclosure and may be distinguished from the kind of prohibition on disclosure necessary to invoke section 32(1)(a), in any event.

I find that section 32(1)(a) does not apply in this case.

Section 26(1)(b)

General Comments

Firstly, I do not accept that the Revenue's Customer Charter can be said to give rise to a legitimate, reasonable, expectation on the parts of the claimants, or any other taxpayer, as to an unqualified right of confidence. The key phrase in the Customer Charter is, in my view, "except as provided for by law". I consider that this must be interpreted as including any legal requirement placed on the Revenue Commissioners to disclose the information, whether required by the Courts or by a provision in a statutory enactment (whether the Tax Acts or the FOI Act). I consider that, if release of a record is justified under the terms of the FOI Act, such release is "provided for by law", and therefore can neither give rise to an action for breach of legitimate expectation nor be in breach of the express terms of the Charter.

Equally, it should be noted that I accept that the right to privacy, in so far as it is relevant to the duty of confidence owed by the Revenue to taxpayers in respect of their taxation records, has a Constitutional dimension as one of the unenumerated personal rights under the Constitution and that I must have regard to such rights in making my decisions. I also accept that the Doe case was concerned with the rights to privacy of individuals who had not been compliant with the tax laws. However, while Clarke J. suggested that compliant taxpayers may have a general right to privacy regarding their tax affairs, he appears to have left open to determination whether or not "there is any constitutional right ... to have one's tax affairs kept confidential" . It seems to me, therefore, that the right to privacy in respect of one's tax affairs has not been found by the Courts to be a Constitutional right, even if one is compliant with the tax laws.

Furthermore, even if I were to accept that compliant taxpayers have an unenumerated constitutional right to privacy in respect of their tax affairs, it is well established that the constitutional right to privacy is not an unqualified one. For instance, in the case of Cogley v RTE [2005] 2ILRM 529, Dunne J. concluded that the constitutional right to privacy was not unqualified and must be balanced against other "competing and significant" rights or interests.

Accordingly, it seems to me that, by suggesting that the "high water mark of any constitutional rights" in respect of one's tax affairs is in respect of any details whose disclosure is "not permitted by law for the time being in force", if disclosure of details is permitted having regard to a thorough analysis of the cited provisions of the FOI Act, it cannot, in my view, be the case that disclosure is not permitted by law, or by the Constitution.

Section 26(1)(b)

Section 26(1)(b) operates to refuse access to a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provisions of an agreement or enactment ...or otherwise by law". It has not been argued that a duty of confidence arises in this case as provided for by the provisions of an agreement. However, certain of the claimants have argued that a duty of confidence arises by way of an enactment. They also argue, as does the Revenue, that the Revenue is bound by an equitable duty of confidence in respect of the information at issue (a duty of confidence arising "otherwise by law" ).

Duty of Confidence Arising by Enactment

As urged by certain of the claimants, one interpretation I could take of Clark J.'s comments in the Doe judgment is that a duty of confidence arises in respect of the Ministers' tax affairs due to the "provisions of an ... enactment". Similar to section 32(1)(a), I consider that, in order for such a duty of confidence to exist, it must have been expressly created by a specific enactment. As no specific provision imposing such a statutory obligation, whether in the Tax Acts or other legislation, has been identified by either the third parties or the Revenue, it seems to me that I have no grounds to accept that a duty of confidence arises from provisions of an enactment, in which case section 26(1)(b) cannot apply.

It also seems to me that, even if a duty of confidence can be implicitly provided for by provision of an enactment, that enactment would have to set out how such a duty can arise. In the absence of such detail, it seems to me that the duty created would be no more than that created otherwise by law i.e. an equitable duty of confidence.

Equitable Duty of Confidence

Having regard to Megarry J.'s judgment in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415,I consider that three conditions must be met in order for an equitable duty of confidence to be breached:

  1. the information contained in the record must have the necessary quality of confidence about it, and
  2. that information must have been imparted in circumstances imposing an obligation of confidence, and
  3. there must be an unauthorised use of that information to the detriment of the party communicating it.

As noted earlier, the FOI Act does not explicitly refer to the need to consider the public interest where section 26(1)(b) is at issue. However, in case 060030, I had regard to public interest considerations in deciding whether or not the release of the information the subject of an apparent duty of confidence would be in breach of that duty.

1. The Necessary Quality of Confidence

I accept that in general terms, details of tax relief claims made and granted would be said to attract the "necessary quality of confidence" for the purposes of meeting the first test of section 26(1)(b).

However, having regard to sections 114 and 836 of the TCA, the information at issue is directly concerned with expenditure that arose from the performance of the claimant's duties as an office holder. One could thus, firstly, dispute the argument that details of such expenses incurred are of "essentially ...a most private and personal nature". One could also take issue with the Revenue's argument that the costs incurred by the claimants are merely "consequent on but not directly concerned with the exercise of the duties of office" when, as stated in its internal review decision in this case, "[t]he universal requirement in determining the deductibility of any such expenses in arriving at the allowable amount is that the expense must be demonstrated to be wholly, exclusively and necessarily incurred in the performance of the duties of the office or employment."

For instance, in case 99168, Mr Kevin Murphy directed the release of expenses paid to "defray expenses incurred by [members of the Oireachtas] in discharging their functions as public representatives" which did "not arise out of some private activities or private aspect" of their lives. While accepting that there was an historic understanding between the Office of the Houses of the Oireachtas (the body to which the request was made in that case) and the Members that details of their expenses will be treated as confidential, he said he found it difficult to see why details of variable expenses claimed by the members "which relate to their duties as public representatives" should be held by that body as confidential. In considering the public interest, he said he had difficulty in seeing "that details of expenses claimed by members of the Oireachtas are any more private than their salaries".

Secondly, the level of detail in a record is relevant to consideration of whether or not this test has been met. In this case, no details are evident from the records as to when or how often the claimants (or their family members) might stay in the relevant accommodation; as to the general financial position of the claimant and/or any spouse with whom he or she may be jointly assessed; as to the final tax bill of a claimant and/or spouse; or as to any other factors or details about the claimant and/or spouse that impacted on that bill. No details were given to me of how release of the details at issue would be detrimental to the claimants' ongoing financial transactions outside of those relating to public office, nor do I see how this would occur. Neither do I see how the amount outstanding on a mortgage could be arrived at by virtue of disclosure of details in the records such as stamp duty or mortgage interest paid (the latter of which is dependant on various additional factors, none of which are evident from the records at issue).

However, release of the details at issue in this review will reveal the identity of the claimants; the assessable spouse (where applicable); whether the claimants own or rent a second residence, or stay in other accommodation (which I accept may depend on family circumstances); the amounts initially paid by claimants from their own resources (and ultimately the net residual cost suffered by the claimant); the amount of mortgage interest paid on owned residences or the amount of rent or hotel costs incurred; and details of other expenses incurred by the claimants. Furthermore, the DAA is one of the many elements of the Revenue's calculation of the claimants' overall tax liabilities (and in some cases, their joint such liability with their spouse). On balance, I accept that information necessary for the Revenue to determine one's tax liabilities, including the DAA, is of a private, personal nature, that would have the necessary quality of confidence about it in order for the first test for the existence of a duty of confidence to be met in this case.

2. Circumstances Imposing an Obligation of Confidence

Ultimately, a reduced level of tax receipts means less money at the State's disposal for other expenditure. In my review, I bore in mind that what is at issue here is records of a tax deduction of which only a small group of taxpayers - Ministers, Ministers of State, or the Attorney General - can avail and where the expenses giving rise to the deduction were incurred in performing the duties of their office. It could be argued that it is inappropriate that the details at issue should warrant protection merely because the benefit concerned is paid through the taxation system rather than through other means - even if disclosure thereof may not be (as argued by certain of the claimants) what the claimants "signed up for" or may be seen by them to be "unfair".

Thus, it could be argued that, given the increased level of scrutiny in matters such as Oireachtas expenses and the expenditure of taxpayers' money by elected representatives in the course of their duties, the claimants should have had a much lower expectation of confidence in their dealings with the Revenue in relation to benefits conferred only on them as officeholders, as opposed to benefits of which they and any other taxpayer may avail. Thus, one could question whether the details concerning the DAA claims could be said to have been imparted to the Revenue in circumstances imposing upon it an obligation of confidence (as opposed to details concerning tax claims made by other taxpayers regardless of their wealth, or even by the claimants themselves as a result of some aspect of their non-political lives), notwithstanding that in this case there is no suggestion of non-compliance with the tax laws.

However, having regard to the central part that the DAA claims have in the submission of an overall tax return and the total tax bill of the claimants (and spouses, where applicable); the traditional understanding regarding the confidentiality of information provided to the Revenue in general (as acknowledged by Mr Murphy in his decision in Case 98042, as to the "knowledge and expectation" that information supplied to the Revenue will be treated in confidence); the commitments in the Revenue's Customer Charter; and comments such as that made by Clark J. in the Doe judgment, I can accept that the second test has also been met in respect of the information at issue. Thus, similar to my decision in case 030624 whereby I held that Mr Haughey was "entitled to the same degree of privacy in his dealings with the Revenue as any other taxpayer", I accept that an equitable duty of confidence exists in relation to the information at issue in this case.

3. Unauthorised Use of that Information to the Detriment of the Party Communicating it.

One might question how real detriment could arise from the release of details of claims, which the claimants are entitled to make based on expenditure incurred by them in their official capacities, and which have been made in accordance with the law. However, I can accept that the release of information that the claimants might otherwise have expected to remain secret (particularly in the context of the confidentiality of one's tax returns) could be seen by them as detrimental to their interests, and where applicable, those of any spouses with whom they are jointly assessed.

As it is clear that the release of the records is not authorised by the parties to whom the information relates, it seems to me that the only way that I may direct their release is if I am satisfied that such direction could be "authorised" or excused on the basis of the public interest defence.

I do not accept the argument that section 26(1)(b) provides that the FOI Act cannot in each and every case, even in the public interest, trump duties of confidence. Thus, in case 060030, I considered the need to vindicate the Constitutional rights of the applicant to fair procedures and the need to observe the equitable duty of confidence owed by the relevant public body to the provider of information concerned, which the Revenue notes that I sought to preserve to a substantial degree. Clearly, that decision was made on the basis of the very particular facts and circumstances attaching to case 060030; furthermore, I accept that there are limited circumstances in which the Courts have considered the disclosure of details subject to a duty of confidence to have been authorised.

It seems to me that if similar facts and circumstances as arose in case 060030 arise in the case at hand, or if the circumstances identified by the Courts are applicable, then I would be in accordance with the FOI Act in finding that the third Coco test is not met in this case, and section 26(1)(b) does not apply to the records at issue.

The purpose for which the HSE acquired the reference at issue in case 060030 was to assist in its employment selection process, which, having regard to the principle of constitutional justice arising under Article 34 of the Constitution and the stage at which the reference was sought, required there be fair procedure. This meant that the subject of the reference (the applicant to my Office) was entitled to be made aware of any negative or adverse comment regarding her. In case 060030, I accepted that there existed a duty of confidence owed by the HSE to the provider the reference, which required the HSE not to disclose the details in the reference to a third party or to the world at large. Thus, such disclosure would have been in breach of the duty of confidence. However, I considered that, having regard to the identity of the requester (as permitted by section 8(4) when considering the public interest) it would have been entirely legitimate for the HSE to divulge to Ms. Y the substance of the reference and that such disclosure would not have amounted to a breach of the duty of confidence owed to the provider of the reference. Thus, I found that the HSE's disclosure of a reference to the subject of that reference - Ms. Y - was not "unauthorised" and that section 26(1)(b) of the FOI Act did not apply to such disclosure.

In the case at hand, disclosure would be to the world at large, while I am not aware that any person has been deprived of particular constitutional rights that would otherwise have warranted the release of the records at issue.

Turning to Court precedent, I have in previous cases noted that the Courts have found the public interest grounds on which disclosure may be favoured to be quite narrow (such as exposure or avoidance of wrongdoing and ensuring the maintenance of the principles of justice as per National Irish Bank v Radio Telefis Eireann [1998] 2 IR 465 and as per the comments of Hardiman J. in O'Callaghan v Mahon and Others [2005] IESC 9). In the case at hand, the public interest in ensuring the maintenance of the principles of justice is irrelevant to this case, while there is no evidence of wrongdoing in respect of the claims the subject of the records at issue. The Revenue considers that disclosure of information the subject of a duty of confidence may be warranted in cases involving public health or safety; clearly, this is irrelevant to the case at hand.

The applicant was invited to highlight any case law (Irish jurisprudence in particular) that would support an argument that the Courts will have regard to a broad range of public interests in considering whether the disclosure of information the subject of a duty of confidence would be in breach of that duty. I note that he has not done so (it is also relevant that my staff have searched for such precedents but to no avail).

Accordingly, in the absence of factors analogous to those in case 060030 or relevant Court precedent that supports the contention that general public interest factors may be taken into account by me in cases such as this, I do not consider it appropriate for me to find that the release of the tax information the subject of the request, which I accept to be subject to a duty of confidence, is "authorised".

This is also the case in respect of disclosing the names of the claimants as contained in the records at issue. It seems to me that the information subject to the duty of confidence includes details of the persons seeking the deductions concerned, in that their identity as a claimant and recipient of a benefit is hitherto unknown. I find thus that the records concerned should be withheld in full under section 26(1)(b) of the FOI Act.

Thus, it follows that there is no need for me to outline, or consider, the other arguments made in this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the position of the Revenue and direct that it withhold the records the subject of the request.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

10 September 2010