Cinneadh
Mr Y and Office of the Revenue Commissioners
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153115-N3X7L7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153115-N3X7L7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Revenue was justified in refusing access to records concerning the tax liabilities of a named company under section 15(1)(a) of the FOI Act
15 October 2025
The applicant in this case is a former Director of a since liquidated company (the Company) and has provided background information relating to an FOI request he made to Revenue on 14 August 2024. He said he had a pre-arranged meeting with two named Revenue staff members in Revenue’s Athlone Offices in 2005 and that a specified amount was agreed as owed by the Company to Revenue at that meeting. He said the Company was placed into liquidation four months later and that the liquidator specified significantly higher tax liabilities than had been agreed. In his FOI request, he sought the following:
1. Confirmation of the tax liabilities of the Company agreed at the meeting with the two named Revenue staff members;
2. Confirmation of the tax amounts in the application before the High Court to wind up the Company;
3. Confirmation as to whether Revenue had provided figures to the liquidator of the Company as monies due and owing, and why Revenue never made any attempts to the courts or the liquidator for payment of these debts.
In a decision dated 11 September 2024, Revenue refused the request under section 41(1)(a) of the FOI Act on the basis that disclosure of the records was prohibited by section 851a of the Taxes Consolidation Act 1997. On 30 September 2024, the applicant sought an internal review of Revenue’s decision. On 22 October 2024, Revenue issued its internal review decision in which it affirmed its refusal of the request. On 26 October 2024, the applicant applied to this Office for a review of Revenue’s decision.
During the course of this review, this Office sought from Revenue copies of the records it deemed to come within the scope of the applicant’s request. In response, Revenue said it conducted a thorough search for records across a number of functional areas where it would be expected that such records, if they exist, would be located. It said no relevant records could be located. It subsequently confirmed that it was now solely relying on section 15(1)(a) of the FOI Act to refuse the applicant’s request on the basis that no records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. It provided details of the searches undertaken to locate any relevant records, which were duly provided to the applicant. Two submissions in response were provided by the applicant.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by Revenue and the applicant. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether Revenue was justified in refusing the applicant’s request for records relating to the tax liabilities of the Company under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot be found.
It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body originally reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I deem it appropriate to consider the applicability of section 15(1)(a) in this case, notwithstanding the fact that the provision was not initially relied upon by Revenue as a ground for refusing the request.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
In this case, the applicant sought confirmation of certain matters. Accordingly, this review is concerned with whether Revenue was justified in refusing the request on the ground that it does not hold records that contain the information sought.
In its submissions, Revenue said its Business Division holds the records of the Company in question. It said that according to the system notes, an audit of the Company took place between 2004 and 2008 and it would be expected that if the records sought existed, they would be held in Business Division. It said its Collector General Division holds records relating to the enforcement of outstanding debts. It said that as there was a debt outstanding in this case, the Collector General Division opened a file on the Company on 9 December 2004 and closed it on 30 May 2005. It said that as the Collector General Division does not deal with audits, and because of the timeline involved, it would not be expected that the Collector General Division would hold the record. It said, however, that for completeness, the Collector General Division conducted a thorough search for the records in question.
Revenue further added that one of the staff members mentioned by the applicant in his request transferred from Business Division to Medium Enterprises Division in 2019. It said the named staff member confirmed that he recalled that a meeting took place with the applicant which was attended by him and the other, now former, staff member named in the request. It said the staff member cannot recall if a note of the meeting was taken as he was not the lead auditor at that time. It said the staff member took over the case from the previous auditor, the former staff member, and that he confirmed he did not take any files with him from Business Division.
On the matter of the actual searches undertaken, Revenue said Business Division conducted manual and electronic searches both by name and reference number. It said Business Division conducted online searches of the T Drive and Revenue’s Audit Case Management (ACM) system, Integrated Case Management (ICM) system and Revenue Case Management (RCM) system. It said the ACM system was replaced by the ICM system which was replaced by RCM. It said RCM is the current system used for recording audit working papers and reports from individual audits. It said the File Retrieval system was reviewed and one VAT file was identified. It said Business Division recalled the file from the central storage facility in Santry to check if a file note was placed in the file. It said the records sought were not found in the file. It said no other files in relation to the applicant or the Company were located. It said Business Division also sent out an email to all relevant staff to check if any staff member had any knowledge of the case in the Branch and consulted with the staff members who deal with filing and sending files to storage. It said Business Division also conducted a manual search of the file store in Navan and Athlone, and files boxed for sending to storage in Navan and Athlone. It said substantial renovations were undertaken in the Athlone office in 2018 and 2019 and a major clean-up of old files was completed. It said closed cases were sent into long term storage in Santry. It said the only locations where hard copy files would be located are at the Revenue offices in Athlone or Navan, or in long term storage facility in Santry. It said it is highly unlikely that the record could have been misfiled or misplaced either in storage or in a Revenue system. It said Business Division has no record of the records sought having been destroyed.
Revenue added that all information in the Collector General Division is stored electronically by reference to the registration numbers. It said Collector General Division conducted searches in the software systems used for case working in that Division using the two relevant registration numbers. It said these included the Integrated Correspondence (IC) system which holds scanned emails between the Collector General Division and the taxpayer/agent; the Active Intervention Management (AIM) system which is the case working system used by the Collector General Division pre-2018; the Debt Management System (DMS) which is the case working system used by the Collector General Division from 2018 onwards and the Integrated Tax Processing (ITP) system which stores the taxes, notes and tax payments in relation to registration numbers. It said the Collector General Division do not hold paper files. It said the Collector General Division also consulted with staff in the Insolvency Unit to check for relevant records. It said that Unit confirmed that the Company was wound up by the courts under the provision of the Companies Act 1963 to 2003 and that it has no further records in relation to this. It said that as the Collector General Division does not undertake audits, it confirmed that no audit information is stored in that Division. It said the Collector General Division confirmed that there would be no other places where the records might be. It said all the information relevant to the taxpayers and companies are online in the Collector General Division. It said the caseworker uses the registration number to input a note on a file or to scan a document into the system. It said Collector General Division has confirmed that it is not possible that its records were destroyed as all records are online and they would be retrieved when the registration numbers are input. It said the Collector General Division has confirmed that the liquidation of the Company was a Court Liquidation and not a Revenue petitioned liquidation. It said Revenue was not involved in the winding up petition and did not prepare the winding up application. It said Revenue did not provide information to the liquidator on debts owed by the Company or provide a claim to the liquidator at any stage.
With respect to its records retention policy and procedure, Revenue said that its records management procedures were influenced by the General Data Protection Regulation 2018, the FOI Act, and the National Archives Act 1986. It said that all staff are provided detailed guidance in its Record Management Guidelines on the responsibilities of staff in relation to the creation, maintenance and disposal of records, as well as the management of paper files, digital files, and emails. It said that all records created or received by Revenue staff are retained for as long as they are required to meet legal, administrative, and operational requirements, after which they undergo authorised destruction, retention or transfer to the National Archives. It said all records are retained while current plus an additional ten years from when they become non-current, although retention periods differ for certain classes of records. It also provided copies of its Record Management Guidelines and Records Retention Schedule.
In his submissions to this Office, the applicant set out the background circumstances that led to the liquidation of the Company and details of his engagements with the liquidator. Among other things, in response to Revenue’s assertion that it was not involved in the winding up petition and did not provide information to the liquidator on debts owed by the Company, he said this is factually incorrect as it is not possible for a company to be liquidated in Ireland without Revenue being informed. He said that, as he understands it, under Irish law, during the liquidation process the liquidator must clarify all monies owed to Revenue and ensure repayment in full. He said he had entered into a signed agreement with the two named Revenue officials that was “recorded fully detailed in writing, recorded and signed off by both parties”.
He also said he had a number of meetings and contacts with Revenue officials in March 2016 and that Revenue failed to provide the information sought. He said he could not accept Revenue’s revised position that no relevant records exist or could be found. He also argued that Revenue have access to extensive Artificial Intelligence (AI) programmes and queried why it did not employ AI to search for records in this case.
Revenue said it searched for any and all records relating to the meeting between the applicant and the named Revenue officials as referenced in the applicant’s initial FOI request, including any recorded agreement, and no relevant records could be found. In response to the applicant’s assertion regarding the requirement for Revenue to be informed on all liquidations, it said that under the Companies Act, there is no legislative basis for Revenue to be informed directly of all court liquidations. It said that a Court Liquidation is where a director or creditor petitions the wind up of a company for non-payment of debts over a certain amount whereas a Revenue petitioned liquidation is a Court Liquidation where Revenue was the petitioning creditor. It said all Court Liquidations would involve affidavits from the petitioner and when this is a creditor, possibly an affidavit from the Directors of the company. It said that for a Revenue petitioned liquidation, the Revenue affidavit would be highlighting the monies owed and the circumstances up to that point, i.e. why Revenue is looking to appoint a liquidator. It said Revenue’s role in a Court Liquidation where it was not the petitioner would vary, based on the circumstances of the case and the size of the tax debt (if any). It said that where Revenue attends Court for such a liquidation, they will have access to the affidavits before the Courts and nothing more. It repeated that the liquidation in question was not a Revenue petitioned liquidation.
Revenue also subsequently provided this Office with a copy of the VAT file that was recalled by the Business Division from the central storage facility in Santry which was the only record related to the Company which it said it was able to locate. I have examine the file and I am satisfied that it does not contain the information sought by the applicant.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI Body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the existence of certain records. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
The applicant has asserted that records relevant to his request ought to exist, by virtue of the signed agreement he allegedly entered into at a meeting with Revenue employees and the purported requirement for Revenue to be informed of the liquidation of all companies in the State. I note that the applicant has provided extensive information on the circumstances surrounding the liquidation of the Company and his reasons for seeking the information at issue. However, as per section 13(4) of the FOI Act, I am precluded from taking the applicant’s motives or reasons for requesting records into account in my decision. The question I must consider is whether Revenue has appropriately justified its position as to why no relevant records exist or could be found. In my view, it has.
In his submissions, the applicant said he could not accept Revenue’s position that it could not locate any records relevant to his request. With respect to Part 1 of the request, the applicant has claimed he entered into a signed agreement with at a meeting with two, named employees of Revenue regarding the Company’s tax liabilities. Nonetheless, I am satisfied with the description of the searches provided by Revenue to locate any relevant records related to this meeting, including the types of records it searched for, the manner in which it searched for such records, i.e. using the taxpayer’s name and number, the numerous digital systems across multiple units that were searched, as well as conducting searches of appropriate hard copy files and in offsite storage facilities. I am satisfied that it has also consulted with relevant staff, including one of staff members referred to by the applicant, and appropriate units within the organisation to locate any relevant records. I also believe that it has provided a sufficient explanation as to its record management practices. While the applicant has queried why Revenue did not employee AI to search for relevant records, as outlined above, section 15(1)(a) is concerned with the reasonable steps taken by an FOI body in an effort to locate records. In this respect, in most circumstances, I do not think it is reasonable to ask an FOI body to employ any method for searching for records which it does ordinarily use. Based on the above, I am satisfied that Revenue has provided an appropriate description of its efforts to locate records relevant to Part 1 of the request. I acknowledge that the applicant is likely to be unsatisfied with this finding. This finding should not be interpreted as an attempt to discredit the applicant's assertions, and any conclusions reached by this Office can only be done with the consideration of the information before it.
With respect to Parts 2 and 3 of the request, although it did not conclude as such, it seems to me that Revenue’s position appears to be that no relevant records ever existed. I have no reason to doubt its position that the Company was wound up by way of a court petitioned liquidation and not a Revenue petitioned liquidation. I note that the applicant has not contested this assertion from Revenue. As such, I do not think it is necessary to consider the distinction between a court petitioned liquidation and a Revenue petitioned one. In essence, the applicant’s disagreement with Revenue on this point appears to be based on his assertion that it is not possible for a company to liquidated in Ireland without Revenue being informed and that, therefore, records relevant to Parts 2 and 3 must exist. However, according to Revenue’s Insolvency Unit in the CGs, there is no legislative basis in the Companies Act 2014 for Revenue to be informed directly of all court liquidations and that, despite what the applicant has claimed, there are no records. While the applicant has claimed that records should exist, due to the alleged requirement for Revenue to be informed of all liquidations, I accept Revenue’s position that this is not the case and that, accordingly, there are no records related to Parts 2 and 3 as it was not involved in the winding up of the Company. Moreover, as I have outlined above, having examined the VAT file provided by Revenue, this file relates to the registration of the Company for tax purposes and does not contain the information sought. Therefore, I am satisfied that this file is not relevant to Part 2 of the applicant’s request.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that Revenue has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no relevant records exist or can be found. Accordingly, I find that Revenue was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue’s decision. I find that Revenue was justified in refusing the applicant’s request under section 15(1)(a) 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.
Stephen Rafferty
Senior Investigator