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Whether the applicant is entitled to a statement of reasons under section 18 of the FOI Act for decisions of Revenue on VAT refunds.

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

Background

In August 2012, the applicant made a request to the Office of the Revenue Commissioners (Revenue) under Section 18 of the FOI Act for "an explanation...of the reasons why refunds were granted by VAT Unregistered Section to parties operating in virtually identical circumstances while the Office if the Inspector of Taxes has refused to make refunds to (the applicant) "

In its original decision, Revenue refused the request on the basis that the applicant did not have a material interest in the act for which the statement of reasons had been sought and that as a company, the applicant was not a person for the purposes of Section 18. The applicant sought an internal review of that decision on 25 September 2012. In its internal review decision, Revenue affirmed its original decision to refuse the request on the basis that Section 18 does not provide for a company to be entitled to a statement of reasons. No statement of reasons was provided in response to the request. However, Revenue did inform the applicant why it was denied VAT refunds and no issue has been raised in this regard.

In conducting this review, I have had regard to the correspondence between the applicant and Revenue, to the submissions of Revenue, to the submissions of the applicant, and to the provisions of the FOI Acts.

Scope of the Review

This review is confined solely to the question of whether the applicant is entitled to a statement of reasons as to " why refunds were granted by VAT Unregistered Section to parties operating in virtually identical circumstances while the Office if the Inspector of Taxes has refused to make refunds to (the applicant) ".

Preliminary Matters

Revenue refused the request on the basis that the applicant, as a company, was not a person and was therefore not entitled to a statement of reasons under Section 18. The word "person" is not defined in the FOI Act and therefore must be interpreted in accordance with the Interpretation Act, 2005. Section 18(c) of the Interpretation Act, 2005 states:

(c) Person. "Person" shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as anindividual, and the subsequent use of any pronoun in place of a further use of "person" shall be read accordingly;

I see no reason, therefore, to prevent the applicant making a request under Section 18 of the FOI Act.

Analysis and Findings

Section 18 of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it relates:

"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

A "benefit" in relation to a person includes:

"(a) any advantage to the person;
(b) in respect of an act of a public body done at the request of the person, any consequence or effect thereof relating to the person, and
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person."

Previous decisions of the Commissioner have addressed the issue of "material interest" for the purposes of Section 18(5), and the interpretation of an "act" of a public body for the purposes of Section 18. Case Number 090132 (2009) Ms C and the Health Service Executive, and Case Number 99212 (2001) Mr X and the Department of Agriculture, Food and Rural Development and other decisions referred to are available on our website www.oic.ie.

In my view, the rationale underlying the previous decisions of this Office may be derived from the terms of section 18(5) itself, which excludes acts which have general applicability. Rather, the act must affect a person particularly, albeit not necessarily exclusively. Section 18(5) sets the requirements for establishing the standing necessary to entitle a person to a statement of reasons for an act of a public body. Like section 17, which allows for the amendment of personal information, and requests under section 7 for access to records containing personal information only, no up-front fee applies to section 18 applications; I take this to be a recognition that section 18 is intended to apply with respect to acts which relate personally or particularly to the person concerned.

An example of a typical act in which the person concerned would have a material interest is an administrative decision on an application for social welfare or other such benefits. Where the act does not relate individually to the person concerned in such a manner, the decision maker must have regard to all of the relevant circumstances in determining whether the applicant is affected in at least some particular manner as compared to others. If others are similarly affected, this does not necessarily remove the act from the ambit of section 18. However, the greater the number of persons similarly affected, the more general and remote the interests of the persons affected are likely to be.

In this case, the question arises as to what is the "act" for which the statement of reasons is sought. In Case Number 99212, the then Information Commissioner set out that it seemed to him that the word "act" in Section 18 must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, he said that the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. I see no reason to depart from this interpretation.

In this review, the applicant has provided substantial information as to why it believes Revenue have acted in a discriminatory manner towards it and how it has suffered a loss as a result. It is not disputed that Revenue has provided the applicant with reasons for its decision on the applicant's application for a VAT refund. The Section 18 request is, in effect, for a comparison between the treatment by Revenue of the applicant and of other companies applying for VAT refunds i.e. the Section 18 request is looking for a comparison between two "acts" of the Revenue Commissioners. In my view, Section 18 does not require a public body to engage in comparing (and possibly justifying) the outcomes of the exercise by it of its powers or functions. I am satisfied that the applicant does not have a material interest in the act for which the statement of reasons is sought, as acceding to the applicant's request would require Revenue to give a statement of reasons for an act in which the applicant has no material interest, specifically how Revenue dealt with other applications for VAT refunds.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby find that the applicant is not entitled to a statement of reasons under Section 18 of the FOI Act, as it has not been demonstrated to me that the applicant has a material interest in the act for which the statement was sought.

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. Any such 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.

Sean Garvey
Senior Investigator