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Whether the Department was justified in refusing to release certain records relevant to the applicant's request for records "relating to the Budget decision to create a new law prohibiting companies from being 'stateless' in terms of the place of their tax residency and the decision not to bring this requirement in until the end of 2014"

Conducted in accordance with section 34(2) of the FOI Act, by Peter Tyndall, Information Commissioner

Background

On 30 October 2013, the applicant made an FOI request to the Department for records, dating from 1 February 2013, "relating to the Budget decision to create a new law prohibiting companies from being 'stateless' in terms of the place of their tax residency and the decision not to bring this requirement in until the end of 2014." He later refined the request to the first and final drafts of relevant records, dating from 1 May 2013.

The Department part granted the request on 9 December 2013. It refused to release certain records (or parts of records, as appropriate) under sections 19, 20, 21, 24, 26 and 46 of the FOI Act.

The applicant sought an internal review of this decision on 31 December 2013. In particular, he argued that, as deliberations on Budget 2014 had concluded, the Department could not rely on the deliberative process exemption (section 20 refers). He also noted the lack of records relating to consultations with 14 multinational companies (MNCs) which, according to the released material, were consulted before the Budget decision.

The Department's internal review decision of 22 January 2014 upheld its application of section 20 on the basis that material solely related to the specific decision to prohibit "stateless companies" had been released (other than where such material had been refused under other exemptions) and that other material relating to "separate and distinct policy matters [remained] subject to on-going consideration". Other than saying that the internal review was not concerned with the "overall search process that was carried out", the Department did not address the question of whether further records relating to the consultations with the MNCs existed. Neither did it refer to any attempts it had made to confirm with the applicant that he did not seek a review of the exemptions relied on other than section 20, or deal with the exemptions concerned.

On 8 March 2014, the applicant made an application to this Office for a review of the Department's decision. He said he believed "there are parts that have been wrongly redacted or withheld under section 20(1), 26 and 24(1)". He also sought a review of the assertion that there is only one record relating to the consultations with MNCs (record 56 refers).

The Department released further material in the course of the review, but maintains that sections 20, 26, and 24 are relevant to the remaining details at issue. I have now decided to conclude this review by way of a binding decision. In carrying out this review, I have had regard to the above; to various contacts between this Office and the Department and the applicant in the course of the review; to the records at issue, copies of which were provided to this Office for the purposes of this review; and to the provisions of the FOI Act.

This review is being carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

In March 2015, Ms Anne Lyons, Investigator wrote to the applicant to say that, in light of his application to this Office, I would not consider any records withheld by the Department under sections 19 and 46 of the FOI Act. In August 2015, she again wrote to him to list the records that remained at issue further to the Department's release of material before and during this review. Her letter also listed documents (a cover email in record 6, record 8 in full, and the second attachment to record 12) that were copies of other records under review and would not be considered further. The applicant did not object.

I should clarify that, although the letter detailed above said that parts of record 11 were subject to review, I am now satisfied that the Department released that material to the applicant in the course of this review. I see no need to consider record 11 further.

Accordingly, my review is confined to whether the Department has justified its refusal of the remaining withheld elements of records 1, 2, 4, 5, 6 , 7, 10, 12, 13, 14, 18 and 56, and of records 65 and 68 in full, and whether it has justified its contention that it cannot locate any further records relating to the consultations with MNCs (which is effectively a refusal of such records under section 10(1)(a) of the FOI Act).

Findings

Preliminary Matters
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Furthermore, the Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of my review, rather than by reference to the facts and circumstances that applied at an earlier date.

It should be noted that procedures recently introduced by my Office generally allow for a public body to make only one submission in support of its refusal of material. However, given that this particular application for review was made before these procedures were introduced, and also given that various issues required clarification, I consider it appropriate for my Office to have engaged with the Department to a greater extent in this case than the procedures generally envisage.

Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Furthermore, because the details at issue are comprised of parts of much longer documents, and having regard to the Department's arguments as to the sensitivity of the details at issue, the analysis of the various issues cannot be as detailed as I would wish.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Finally, the Department has not sought to rely on any other provisions of the FOI Act in the course of this review, other than sections 20, 24 and 26. I see no reason to consider any other exemptions, such as section 21, which I note was also referred to in the Department's initial decision making process.

Section 10(1)(a)

Of the 72 records listed by the Department in the schedule of records provided to the applicant, only one (record 56) concerned the MNC consultations. The applicant contended that further such records should exist.

The Department's internal review should have considered the "overall search process", given that the applicant had specifically questioned the adequacy of those searches. Reasonably enough, the applicant assumed that the Department's position at internal review stage was that it held no further such records. Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable. When a public body asserts that it holds no further records of relevance to a request, it is effectively relying on section 10(1)(a) in refusing to release such records.

Before I go on to deal with the Department's reasons for effectively relying on this provision in relation to further records concerning the MNC consultations, it is necessary to refer to three other records it had, in fact, identified as relevant to the request but the existence of which it had not disclosed to the applicant in its decision making process.

The FOI Act requires me to take steps not to, in essence, prejudice the ability of a public body to appeal any decision I might make to direct release of records. However, for reasons I set out below, reference to the existence of these records in the circumstances of this case cannot be construed as a breach of section 43(3) of the FOI Act. In saying this, it is difficult to see how I could have dealt with the applicant's contention that further records should exist if I had not been able to refer to the records concerned.

The Department referred to the existence of these three records in its response to my Office's initial notification of the acceptance of the review. It said it had decided not to identify these records on the schedule of records it had provided to the applicant, or release them, on the basis that section 26(4) was relevant. Section 26(4) enables a public body, in certain circumstances, to refuse to confirm or deny the existence of a record to which section 26(1) of the FOI Act applies. In its later submission to this Office of 16 April 2014, the Department said it considered it should have disclosed the existence of one of these records (a list of companies), but that it still considered that to disclose the existence of the other two records would breach section 26(4) of the FOI Act.

In March 2015, in inviting further submissions from the Department, the Investigator told the Department that she disagreed with the decision to rely on section 26(4), given the general nature of the applicant's FOI request. The Department's reply of 1 May 2015 did not deal with section 26(4). On 20 July 2015, the Investigator told the Department that, amongst other matters, it had not responded to her comments on its application of section 26(4). She outlined what she intended to recommend to me accordingly. On 27 July 2015, the Department "note[d]" the Investigator's proposed recommendation on section 26(4) and, in a telephone conversation on 28 July, told the Investigator it was no longer relying on section 26(4) in relation to the records concerned.

On 11 August 2015, the Investigator explained to the Department that, because the review had to deal with the applicant's claim that further records of relevance to the consultations with the MNCs should exist, and because the Department accepted that section 26(4) was not applicable, she intended to tell the applicant that the Department held three further records. It was clear that my decision would have to deal with the effective refusal of access to the three records. Although the Department had a number of queries about this, it did not raise any objections to this line of action.

Accordingly, on 13 August 2015, the Investigator told the applicant of the existence of the three records concerned (a list of companies, and notes of the discussions the Department had with two MNCs), and explained why he had not been told about the records beforehand. She told him the Department had said it does not hold any further records concerning the discussions with the MNCs because, due to pressure of time, formal notes were made on an ad hoc basis. It said it had not created any notes of other consultations. The Investigator outlined details of searches the Department said it had carried out for relevant records; its position that all staff had confirmed they hold no personal records of the meetings; and that diary entries, where they exist, record no information in terms of notes or details on the meetings apart from the title of the meeting and, in some cases, the names of the attendees. While the applicant spoke to my staff following this letter, he did not argue that further records existed over and above what had been identified at that point.

One would expect that a public body making significant decisions or policy proposals would record details of all issues taken into account. Thus, one could reasonably expect that the Department should have created records of all the meetings it had with the MNCs. However, the Department has categorically stated to this Office a number of times (including in a meeting the Department sought with officials from my Office), that it did not do so. I have no reason to dispute what the Department has said and I accept that no further records concerning the MNC consultations exist. As the FOI Act only provides a right of access to records that are held, I find that the Department has justified its effective refusal of such records under section 10(1)(a).

The Department has accepted that section 26(4) is not applicable to the three further records, and has indicated that it is willing to consider the records afresh. However, I must nonetheless formally annul its effective refusal of the records concerned in order to enable it to do so. I find accordingly.

The Withheld Material
The material to be considered in this review is as follows:

Record 1 - details on page 2;

Record 2 - details on pages 1 and 2, final page in full;

Record 4 - second paragraph of email dated 12 June 2013. There is an attachment to record 4, called "Company Residence", from which have been withheld details on pages 3, 4, and 6. The attachment contains two annexes, of which Annex One has been fully withheld. The Department said, on 31 August 2015, that the second Annex "can be released", which it should do without delay;

Record 5 - details on both pages;

Record 6 - attached to record 6 is a version of the "Company Residence" document (including annexes) that was included in record 4. Details have been withheld from pages 3, 4, and 6 of this attachment, as has the attached Annex One.

Record 7 - details on pages 2, 5, 8, 9, 10, 11, 15, 16, 17, 18 (which was withheld in full), 19 and 20 of the first attachment, and details on pages 4, 5, 6, and 8 of the second attachment, and Annex One;

Record 10 - details on pages 5, 10, 11, 12, 13, 14, 15, 22; 23, and 26;

Record 12 - details at point 10 of the first attachment;

Record 13 - title of an attachment to the email concerned;

Record 14 - details on pages 2 and 3;

Record 18 - one bullet point on the final page;

Record 56 - details of Multinational Companies (MNCs) and their representatives; and

Records 65 and 68 - withheld in full.

Section 20
Section 20(1) of the FOI Act provides that a request for a record may be refused if it "contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered ... for the purposes of those processes)." A record found to be exempt under section 20(1) may be released in certain circumstances (sections 20(2) and 20(3) refer).

In the course of this review, the Department released some of the material it had previously withheld under section 20(1). However, its submission of 27 July 2015 stated that the details it continued to withhold under this provision concern "other policy matters" that "remain under ongoing, active consideration in terms of the forthcoming Budget and Finance Bill".

The Department's reference to "other policy matters" suggests that the details concerned are outside the scope of the request and therefore this review, which point was also alluded to in its internal review decision. However, the Department has made no specific claim to this effect in the course of this review. Therefore, I have proceeded on the basis that the Department considers all details withheld from the records to be relevant to the request (which in any event is relatively broad, in that it concerns records "relating to" the relevant Budget 2014 decision).

I accept that material concerning possible Budget decisions on taxation policy, including opinions as to the possible outcomes of different options, is matter relating to the Department's deliberative processes and that section 20(1) of the FOI Act applies to such details. The Department has stated that the following details relate to matters under current deliberation, which I accept, having regard to section 13, are exempt under section 20(1) of the FOI Act:

• All details withheld from Records 1 and 5;
• Record 4: the remainder (i.e. the second paragraph) of the email dated 12 June 2013, and the details withheld from pages 3 and 4 of the attachment entitled " Company Residence" in record 4;
• Record 6: the details withheld from pages 3, and 4;
• Record 7: the details withheld from pages 2 and 17, the last paragraph of page 16 and all of page 18, of the first attachment. The details withheld from pages 4, 5, and 6 of the second attachment; and
• Record 10: the details withheld from pages 22, 23, and 26.

 

A record to which section 20(1) applies may fall to be released if any of the exceptions at section 20(2) apply, or if the public interest in openness and accountability outweighs the public interest in protecting information to which section 20(1) applies (section 20(3) refers).

I do not consider any of the exceptions at section 20(2) to apply in this case. With regard to section 20(2)(b) in particular (which requires the release of factual information), there are some brief details in certain of the above listed records that could be described as factual. However, having regard to section 13, and having examined the above listed records, I am satisfied that disclosing only those parts of the records containing factual information would result in the extracting of particular sentences and would, in my view, be misleading. Therefore, I find that section 20(2)(b) does not apply.

As regards section 20(3), I accept that there is a public interest in ensuring openness and accountability in respect of decisions made by the Department regarding taxation policy. However, section 20 itself reflects a public interest in ensuring that public bodies have the opportunity to consider properly various options open to them in making such decisions, including the possible outcomes of particular options, without premature disclosure thereof.

I have considered whether, since the announcement of Budget 2016 and the publication of the Finance Bill, it could be argued that there is no longer a requirement to protect the deliberative process in relation to this element of taxation policy. However, it is relevant that taxation policy may change in response to external forces. Accordingly, I accept that the options referred to in the records appear to have ongoing potential application, and can be distinguished from, say, a single measure specific to a particular Budget.

The Department, in its initial submission, also sought to withhold material from records 12, 14, and 18 under section 20(1) of the FOI Act. That submission said that the withheld details related to broader issues that were at that time still subject to consideration.

However, no further submission has been made in relation to the details concerned. I have not been told whether they concern ongoing deliberations, or concluded deliberations. Granted, section 20 applies to any details relating to a deliberative process, but section 20(3) must still be considered. No argument has been made to persuade me that the details concerned relate to "live" deliberations, or have ongoing potential application, such that the public interest weighs in favour of withholding them. I am not satisfied that, even if these records are exempt under section 20(1), that the public interest weighs in favour of withholding them. Having regard to the material concerned, however, and arguments made by the Department in respect of other records at issue, I feel it appropriate to consider whether they are exempt under section 24 of the FOI Act.

Section 24
Section 24(1)(c) of the FOI Act provides that the head of a body may refuse to grant a request for a record if, in the head's opinion, "access to it could reasonably be expected to affect adversely the international relations of the State".

Further to the requirements of section 34(12)(b), I expect a public body seeking to rely on section 24(1)(c) to demonstrate how release of the details in the records at issue, at this point in time, could reasonably be expected to affect adversely the international relations of the State. Furthermore, the body must show that that expectation is reasonable. The mere possibility of some effect, or even of an adverse effect, is not sufficient to meet the requirements of section 34(12)(b) of the FOI Act. I should say here that I accept that matters of taxation as between States are generally viewed as sensitive in the context of international relations.

The Department argued that section 24(1)(c) applies to certain details due to the impact of their release on Ireland's relationship with other countries and with international organisations, and in turn Ireland's international relations.

It maintained that this provision applies to the following:

• Record 2: the details withheld from page 2;
• Record 4: the details withheld from page 6, and Annex One;
• Record 6: the details withheld from page 6, and Annex One;
• Record 7: the details withheld from pages 5, 8, 9, 10, 11, 15 (except for one sentence to which the Department argued that section 26 applies), and 16 (remainder) of the first attachment; the details withheld from page 8 of the second attachment; and Annex One;
• Record 10: the details withheld from pages 5, 10, 11, 12, and 13; and
• Records 65 and 68 in full.

 

Record 2
The Department has withheld the relevant details (which I cannot describe due to section 43(3)) on the basis that they "clearly [have] the potential to impact adversely international relations with the US". It also said that their release "may impact relations with the US". The record concerns a diplomatic contact, which the Department has acknowledged is "now in the public domain". It argues that revealing the details at issue would be "encroaching upon the space required to conduct such sensitive activity."

The details at issue date from 2013 and could be regarded as administrative in nature. The Department has not explained how the harms it envisages could result from their release at this point in time, or why its expectations are reasonable. Indeed, the harms referred to by the Department are couched in terms of standards much lower than that contained in section 24(1)(c). For instance, it has not explained how release of the details at issue could ""encroach ... upon the space required" for the relevant diplomatic activity to take place, or how this would result in the harm that section 24(1)(c) is intended to prevent. I do not consider the Department to have met the requirements of section 34(12)(b) in relation to its decision to withhold the relevant excerpt of record 2, which in such circumstances requires me to direct the release of the details concerned. I find that section 24(1)(c) does not apply to exempt the withheld portion of record 2.

Records 4 and 6
Although records 4 and 6 are slightly different versions of each other, the material withheld from both records under section 24(1)(c) is identical. The Department said that the details concerned describe company residence rules of other countries in comparison with Ireland's and that release thereof "could negatively affect Ireland's relationship with the countries referred to". It has also said that Ireland's position in certain negotiations and enquiries "could" be weakened by release of the details concerned.

The details withheld from page 6 of both records comprise a possible disadvantage of Ireland choosing to do nothing in respect of residency rules (all other such disadvantages have been released). Other than saying that release of this detail "could impact on our ability to negotiate international tax treaties", the Department's submissions do not specifically refer to this detail or otherwise explain why it has been withheld. The details concerned contain no criticism of other countries, whether generally or specifically, nor do they contain details of any position that Ireland might adopt when negotiating with other countries. I have no argument before me as to how disclosure of the details concerned could have any impact on Ireland's relations with other countries, or on Ireland's ability to negotiate international tax treaties, much less why such release could reasonably be expected to adversely affect relations with other countries (and in turn the international relations of the State).

Annex One to both records contains a factual comparison of residency rules which, according to the Annex itself, is sourced from three publicly available publications. The details concerned are, therefore, accessible to anyone. The Annex does not purport to express any opinions, positive or negative, on the rules of the countries concerned. Neither does it contain details of any negotiating position that Ireland might take based on the various residency rules set out therein.

In the absence of explanation from the Department, therefore, I do not see how release of these details might in some way compromise the Department's negotiating position as claimed in its submissions. I note that, in particular, it says that it cannot explain to me, on advice from the Attorney General, why release of certain of the details concerned could impact on Ireland's interactions with certain bodies. However, I also note that my Office told the Department that any particularly sensitive information that is contained in a submission (and highlighted as sensitive) will be treated by this Office as such. Yet, the Department still did not seek to explain its position. Thus, the Department has not explained how disclosure of the various details withheld from records 4 and 6 could have the impacts it envisaged, or why such expectations are reasonable. Again, those impacts are couched in terms of standards that are much lower than that required for section 24(1)(c) to apply.

Having regard to section 34(12)(b), I do not consider the Department to have justified its application of section 24(1)(c) to the details withheld from records 4 or 6, which requires me to direct their release. I find that section 24(1)(c) does not apply to exempt the withheld parts of records 4 and 6.

Records 7 and 10
The Department said that these details, contained in what it emphasises are "drafts of a Tax Strategy Group Paper", "refer to the views of other countries in relation to our tax regime, which could reasonably be expected to create difficulty for the relationships between those countries and the State." Certain details are described as "commentary" on other countries, the release of which the Department maintained "could directly impact Ireland's relationships with those countries in relation, in particular, to negotiations of tax issues" at various international fora.

The Department said that the details concerned refer to Ireland's position in what was, in 2014 and in March and July 2015, described as ongoing negotiations on EU tax proposals and "could therefore weaken the State's negotiating position" on that issue. The Department said that further material speculates on the impact of the tax policies as they then stood, in relation to other matters, which "clearly impinges on the State's relationships with other countries" and at various international discussions. It referred to material withheld in relation to particular international disputes that "could impact on the State's negotiating position in those disputes".

It also referred to information received from abroad in relation to tax matters, the release of which it said "could reasonably be expected to adversely affect international relations ... ". It said it is "important that the Embassy network abroad feels confident that it can report back potentially sensitive information without it subsequently emerging in the public domain."

Finally, it said that further withheld material "refers explicitly" to various negotiating positions, the release of which the Department argued would "create difficulties in the State's relationships with other countries and could weaken the State's negotiating stance" in such negotiations.

Turning to the details withheld from the first two paragraphs on page 5 of record 7, I note that they refer in part to publicly stated views of other countries on our tax regime. The Department has not explained why release of such details, or indeed the remaining details at issue in the first two paragraphs on page 5 could, as it said "reasonably be expected to create difficulty for the relationships between those countries and the State" or "directly impact Ireland's relationships with those countries" such that Ireland's ability to negotiate with those countries would be impinged upon. In so far as the first two paragraphs of page 5 of record 7, and similarly the first two paragraphs of page 5 of record 10, can be said to express a view on the (publicly known) tax regime of another country, the view concerned seems to me to be couched in neutral if not positive terms. Even though the details in the first two paragraphs of page 5 of records 7 and 10 refer to the Department's speculation as to the possible steps that might be taken by other countries, the comment concerned is general. The Department has not explained why it considers that release of that general comment could "clearly impinge on the State's relationships with other countries", such that it could result in the harm that section 24(1)(c) is supposed to prevent.

However, I am satisfied that the other two paragraphs at issue on page 5 of record 7 and also of record 10 would enable an insight into the nature of discussions at international level. It seems to me that disclosure of this material could reasonably be expected to adversely affect relations between Ireland and other participants in this process, such that I can accept that release of the paragraphs concerned could reasonably be expected to affect adversely the international relations of the State. For the same reasons, I consider that release of the details on pages 8 and 9, and the first withheld paragraph of page 10 of record 7 could reasonably be expected to affect adversely the international relations of the State. I find section 24(1)(c) to apply to the details concerned accordingly.

The remaining details on page 10, as continued onto page 11, of record 7, and the details withheld from page 10 of record 10, comprise information received from the Irish Embassy. Previous decisions from this Office have accepted that the expectations of the international community are relevant to the consideration of section 24(1)(c). I accept that the Irish Embassy would, when made privy to details such as these, be expected not to publish such information to the world at large. I can therefore accept that, in the circumstances, release of the details concerned to the world at large, notwithstanding the passage of time, could reasonably be expected to affect adversely the international relations of the State. I find section 24(1)(c) to apply accordingly.

I also accept that release of the details on pages 15 (remainder) and 16 of record 7, and on pages 11, 12, and 13 of record 10 could affect adversely the ability of the State to negotiate tax treaties with foreign countries. The details comprise the Department's commentary on the tax regimes of the countries concerned. I accept that, given the sensitivity of the issues, disclosure could reasonably be expected to affect adversely Ireland's relationships with those countries and thus the international relations of the State. I find accordingly.

The details withheld from page 8 of the second appendix to record 7 are similar to the details withheld from page 6 of records 4 and 6. However, in so far as the relevant excerpt of record 7 refers to specific countries, I consider that the approaches referred to would have been made with the expectation of confidentiality. Thus, I accept that release of the names of the countries referred to on page 8 of the second appendix to record 7 could affect adversely Ireland's relations with the named countries, and in turn the international relations of the State. I find section 24(1)(c) to apply, accordingly.

The finding I have already made in relation to Annex One of record 4 applies equally to Annex One of record 7.

Records 65 and 68

The Department said that disclosure of these records "could create difficulty in the conduct of relations between this country and other States and could disclose positions which could weaken the State's negotiating strategy with other countries at [various international fora]."

In relation to record 65 specifically, it said that release of the record reveals that diplomatic efforts were being undertaken at the most senior level in relation to 'stateless companies', the disclosure of which "may impact" on the Ambassador's ability to effectively perform her role. While it later said that the "material in itself is not sensitive", it again maintained that the "mechanism through which diplomatic activity is arranged should be protected."

The Department's schedule of records, as sent to the applicant, described record 65 as "Corr DFA US Ambassador", which seems to me to have effectively revealed that diplomatic efforts were being undertaken at the most senior level in relation to 'stateless companies'. The details in record 65 are administrative in nature (section 43(3) prevents me from going into further detail on this point). Indeed, the Department has acknowledged that the details concerned are "not sensitive" (which, in so far as the relevant arguments may have been directed at record 65, completely undermines the proposition that release of the record could disclose positions relevant to international fora).

The Department appears to consider that all elements of diplomatic activity should be exempt from release as a class, even material relating to general administrative activities. However, section 24(1)(c) clearly requires that, in order to be exempt, there has to be a reasonable expectation that the release of the material concerned could affect adversely the international relations of the State. Even if I accept that the "mechanism" outlined in the record is, of itself, potentially capable of exemption under section 24(1)(c), the Department has not explained how disclosure of the details of that "mechanism" could have any effect on the Ambassador's ability to perform her functions in respect of Ireland's relations with the US or any other country, much less an adverse effect. Neither has it sought to explain why its expectation of harm in this regard is reasonable.

Specifically in relation to record 68, the Department argued that this contains "substantive briefing points for use by the Embassy network in relation to [defending] Ireland's tax reputation" and that its release "potentially impacts the ability of the embassies to perform their functions in terms of relationships with the jurisdictions in which they are operating". Later describing the record as containing "detailed briefings for use by the Ambassador if asked direct questions in relation to the Budget changes", it said that release of the material "compromises the ability of the Ambassador to deploy it effectively if it is in the public domain".

Record 68, dating from October 2013, contains a number of possible questions that the Ambassador may be asked further to the Budget 2014 changes, and suggested responses. It thus appears to represent what Ireland wants to say publicly in respect of those changes and its reasons for making them. This is not a record containing information, of which the Ambassador should be aware, but which should not be voiced publicly. Neither has the Department specifically identified such information, or indeed any information in the record that, at this point in time, the Ambassador or others would not have been prepared to discuss in public.

Furthermore, the Department has not explained why the Ambassador would need to "deploy", at this point in time, material concerning changes to taxation policy further to Budget 2014, or how release of the details concerned would compromise the Ambassador's ability to use that information now. Neither has it identified any details in this record that comprise positions which, if released, could weaken the State's negotiating strategy at international fora. Nor, for that matter, has it explained why the Ambassador's public reliance on those details would not have such an effect in any event.

I do not consider the Department to have met the requirements of section 34(12)(b) of the FOI Act in relation to its application of section 24(1)(c) to records 65 and 68. I find accordingly.

Records 12, 13, 14 and 18
As previously indicated, I have decided to consider the content of records 12, 14 and 18 under section 24(1)(c) of the FOI Act.

The Department's initial submission said, in relation to record 13, that it had withheld the details concerned, albeit under section 26(1)(a), because it had been advised by the Attorney General that the details concerned "should be treated as confidential". It later said that the matter referred to in record 13 "is confidential". Such arguments do not meet the requirements of section 34(12)(b). It could be argued that, as section 34(12)(b) requires me to direct release of material in such circumstances, I am obliged to direct release accordingly. However, having regard to the content of these records, and the Department's arguments on international relations in the context of other records, I consider it appropriate to consider section 24(1)(c) of the FOI Act in relation to record 13 also.

The details in records 12, 13, and 14 relate to correspondence with an international institution. I accept that the content of such correspondence was confidential and that disclosure of it under FOI could reasonably be expected to adversely impact Ireland's relations with the institution and thus Ireland's international relations. Having regard to the substance of the details withheld from record 12, which refer to the content of correspondence with the institution, and also having regard to section 13, I accept and find that section 24(1)(c) applies to the details concerned. I find similarly in relation to the details withheld from record 14, in that they discuss how Ireland should interact with the institution in a particular context. Section 43(3) prevents me from going into further detail in this regard, but I accept that release thereof could reasonably be expected to adversely affect Ireland's relations with the institution and thus its international relations.

However, the material withheld from record 13 is general and the Department has not explained why release thereof, particularly with the passage of time, could have any impact on its relationship now with the relevant institution, much less the impact envisaged by section 24(1)(c). The withheld detail does not disclose the content of any confidential correspondence between Ireland and the institution. I find that the Department has not justified its refusal of the detail concerned, and it should be released.

Withheld from record 18 is a possible disadvantage of Ireland "do[ing] nothing" in relation to its residency rules (all other such disadvantages having been released). The withheld disadvantage contains an observation of a factual nature concerning another country. It is not critical of the country, nor does it contain details of any position that Ireland might adopt when negotiating with (or even dealing with) other countries in general in this regard. I have no argument before me as to how disclosure of the details concerned could have any impact on Ireland's relations with the other countries, or even institutions, much less why such release could reasonably be expected to adversely affect the international relations of the State. I find that the relevant details are not exempt under section 24(1)(c).

Section 26
Section 26(1)(a) provides for the mandatory refusal of a record containing information:

• given to a public body in confidence and,
• on the understanding that it would be treated by it as confidential and,
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

 

Section 26(1)(b) provides that a that a head shall refuse to grant a request for a record if "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ... or otherwise by law."

However, section 26(2) provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" 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 a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "

A record to which section 26(1)(a) applies may be released subject to consideration of whether the public interest in release of the details outweighs the public interest in withholding information to which section 26(1)(a) applies. The FOI Act does not provide for the consideration of the usual public interest balancing test in a case where a duty of confidence exists. However, the Courts have, in limited circumstances, considered the disclosure of details subject to a duty of confidence to have been authorised, or excused, on the basis of the public interest defence.

The Department has relied on section 26 of the FOI Act in relation to certain details withheld from records 2, 7, 10, and the remainder of record 56.

Records 2, 7 and 10
The details that the Department considers should be withheld under section 26 are contained in the second deletion on the first page (although it seems to me that all three deletions concern the same matter and must be considered accordingly), and the final page in full, of record 2; one sentence on page 15, and the details withheld from pages 19 and 20, of record 7; and the details withheld from pages 14 and 15 of record 10.

The deletions on the first page of record 2 refer to material, which was provided to the Department by the Revenue Commissioners under taxation legislation for the purposes of formulation and evaluation of fiscal policy. The Department claimed that the Revenue owes its customers a duty of confidence, further to taxation laws. That the Revenue owes its taxpayers (private and corporate) a duty of confidence in respect of their tax details is, I think fair to say, generally understood and accepted and I see no need to go into any major analysis of the various elements of section 26(1)(b). Thus, I accept that the Revenue owes taxpayers a duty of confidence provided for either by statute, or otherwise by law, in relation to details of their tax affairs. In turn, I accept that the Department is equally bound to honour such duties of confidence in respect of information it receives from the Revenue.

The details at issue on the first page of record 2 are very general. The Department has not explained to me how their release could lead, directly or indirectly, to the disclosure of information about the tax affairs of any individual company or companies. I see no basis to accept the Department's contention that release of the details on the first page of record 2 would breach the duty of confidence that the Revenue owes to its taxpayers. Having regard to section 26(2) of the FOI Act, I find that section 26(1) cannot apply to the redactions concerned. I find accordingly.

Page 3 of record 2 contains estimates of total employment and tax receipts from relatively low numbers of companies in certain sectors, provided by the Revenue to the Department, under taxation laws, for the purposes of evaluating and formulating its taxation policy. I am bound by section 43(3) not to go into any more detail in this regard. I am satisfied that the details do not directly refer to any individual companies in the sectors concerned. However, the Department maintained that it is possible to extrapolate information for individual cases from aggregated information such as this, and that it is not possible to arrive at a rule as to a specific number of taxpayers below which such details should not be released. It says that Revenue generally does not reveal aggregate figures for fewer than 10 cases in a "cut of data", but notwithstanding this, it may not be appropriate to reveal aggregate information for a large number of companies in a sector in which there is one dominant player. I accept the Department's arguments that to reveal the details concerned (which, as noted, concern relatively low numbers of companies) could, in addition to other material in the public domain, enable the identification of the individual companies concerned, which would result in a breach of the duty of confidence owed by the Revenue to these companies. Having regard to section 26(2) of the FOI Act, I accept that section 26(1) applies to the details concerned. I find accordingly.

The Department withheld details from pages 19 and 20 of record 7, and from page 14 and 15 of record 10, on the basis that they too comprise details received from the Revenue. I accept that the details in the first excerpt (a bullet point) withheld from page 19 of record 7 and from page 14 of record 10 could, for reasons already outlined, disclose information about individual corporate taxpayers and that, having regard to section 26(2), is exempt under section 26(1)(b) of the FOI Act. However, the remaining information concerned on the relevant pages of both records has already been released from record 11 and I see no reason to find, accordingly, that these details should be withheld under section 26(1)(b) of the FOI Act. I find accordingly.

Finally, I am satisfied that the remaining sentence withheld from page 15 of record 7 would disclose information about the tax affairs of an individual company. Having regard to section 26(2), I accept that this information is exempt under section 26(1)(b) of the FOI Act.

Record 13
The Department's initial submission claimed that it had withheld material from record 13 under section 26(1)(a) as it had been advised by the Attorney General that the details concerned "should be treated as confidential". The record was created by the Department and section 26(2) is relevant. The Department has not explained how disclosure of this general reference, concerning communications from an international institution, could give rise to a breach of a duty of confidence it may owe to the institution in respect of that particular detail. Having regard to section 26(2), I find that section 26(1) cannot apply to the redaction concerned.

Record 56
Record 56 is a composite note of the Department's meetings with the various MNCs it consulted before Budget 2014. The Department released the record in part but refused to release the names of the MNCs, and their representatives, on the basis that section 26(1)(a) of the FOI Act applies.

The Department's submission of 16 April 2014 said that it had "agreed that the discussions, including the identity of the companies, would be treated as confidential because of the sensitivity of the international tax issues that were being discussed."

On 20 March 2015, Ms Lyons drew the Department's attention to the requirements of section 26(2). In reply, the Department said it considered it owes an equitable duty of confidence to the MNCs listed in record 56. Its position, therefore, is that section 26(2) does not apply and that the details at issue are exempt under section 26(1)(b).

In considering whether or not an equitable duty of confidence (a duty of confidence provided for "otherwise by law") exists, this Office has regard to the three elements of what are generally known as the Coco tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):

"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

The applicability of these tests, at least in a commercial setting, have been confirmed by Mr. Justice Fennelly in the case of Mahon v. Post Publications [2007] IESC 15.

I accept that the information at issue - the names of the MNCs that were consulted with by the Department, and the names of the persons representing them - is not in the public domain and has the necessary quality of confidence about it.

For the reasons outlined below, I also accept that information imparted by individual MNCs, including their identities and those of their representatives, was imparted in circumstances importing an obligation of confidence.

I accept the Department's position that its consultations were intended to discuss confidential matters such as corporate tax structures. Furthermore, I accept that participation by the MNCs concerned is a matter of great sensitivity. In such circumstances, I accept that the MNCs would not have participated unless they were assured of confidentiality.

In saying this, I note that the details released from record 56 say that "[i]"n a number of cases, the companies had contacted the Department unsolicited" and that "[i]n a number of other cases, the Department approached the MNCs, having identified them as a selection of the largest employers in Ireland across a number of sectors." One could argue that this indicates attempts, by at least some of the MNCs concerned, to lobby the Department. Regardless of the fact that the consultations took place before the introduction of the Regulation of Lobbying Act 2015, I would nonetheless generally consider details of any attempts to influence policy making as something that should be released.

However, the Department emphasised in its meeting with my staff that it needed to get information from the MNCs in order to properly assess the implications of the taxation changes that it might introduce in the Budget. Thus, I accept the Department's position that, regardless of who contacted whom, it would have needed to meet with the MNCs concerned to obtain information necessary to inform its deliberations in advance of Budget 2014, and thus that the meetings should be seen in a different light to general lobbying. The Department also emphasised that does not normally seek to withhold "lobbying" records, and provided details of an FOI release that supported this stance.

The Department supplied further details in support of its position that the circumstances of its contacts with the MNCs imported an obligation of confidence, which I do not consider myself to be at liberty to disclose.

Finally in relation to this test, which is concerned with "information imparted", I do not consider it appropriate to focus on the identities of the companies in isolation. It seems to me that if I accept that the details of the meetings were confidential, I should also accept that the MNCs would have expected, and been given, assurances of confidentiality about the fact that they met with the Department in the first place. In saying this, I am aware of negative public comment concerning the tax arrangements of various MNCs for instance. It is reasonable to presume that the MNCs would not want their tax arrangements being called into question simply because they met with the Department and that in such circumstances they would have expected confidentiality in respect of the fact that they met with it.

The final test required to be considered is whether release under FOI of the relevant names would amount to an unauthorised use of that information to the detriment of the party communicating it. I understand that release of information without consent is enough for detriment to arise. I therefore consider the final test to have been met.

I should make it clear that my Office did not consult with the MNCs concerned. In July 2015, the Investigator requested contact details for the relevant MNCs, because at that stage the Department had not provided sufficient information to justify its application of section 26 to the remainder of record 56. Although she told the applicant in August 2015 that she intended to consult with the MNCs, she later took the view that it was not necessary to do so in light of additional supporting argument that had been provided by the Department in the meantime. I agree that, accordingly, it was not necessary to consult with the MNCs concerned. Neither do I consider it necessary, or indeed appropriate in this case, for my Office to establish if they might consent to the release of the details at issue.

Public Interest Defence
The public interest grounds on which the Courts have found a breach of a duty of confidence to be authorised, or excused, are narrow, and include the exposure or avoidance of wrongdoing or danger to the public, and ensuring the maintenance of the principles of justice. I do not consider these grounds to have any relevance to the records at issue.

I am also aware that Fennelly J. noted, in obiter remarks in Mahon v. Post Publications, that certain UK cases had established that "the government was not in a position to complain of breach of its secrets and publication of confidential information on the same basis as private individuals" and that government agencies "must prove detriment to the public interest". However, the material at issue here is not solely "government" information. The details at issue are, in my view, as much information about the MNCs concerned as they are "government information". Indeed, it seems to me that the provisions of section 26(2) are intended to ensure that what might be properly described as "government" information cannot be withheld under section 26 of the FOI Act. There is no need for me, therefore, to consider whether the Department must prove, or has proven, detriment to the public interest in this case.

Finally, I am also aware that Binchy J., in the case of O'Brien v Radió Telefis Éireann [2015] IEHC 397, found that a duty of confidence (albeit between a bank and its customers) "may give way to issues of very significant public importance, and not just in cases where wrongdoing is involved." He said, however, it seemed to him that there must be "some meaningful connection between the issue of public importance that has been identified, and firstly, those whose rights may be breached and, secondly, the information and documentation under consideration." While recognising "the public interest in the affairs of IBRC", he said that that "of itself does not entitle the public to know every detail of the affairs or operation of IBRC and certainly not confidential information concerning its customers." He said that the public interest was "in knowing that it is properly governed and operated, and where there are any significant shortcomings in this regard, and in particular where such shortcomings may lead to significant losses, which have to be borne at the expense of the public purse, in [his] view the public is entitled to be informed of such matters."

I accept that the making of taxation policy, which in turn affects tax revenue and the "public purse", can be categorised as a meaningful issue of public importance. However, I have no remit whatsoever to consider, or make findings on the extent to which shortcomings in any public body's decision making process may be evident from any record. I do accept, however, that release of information showing how such policies were arrived at enables the general public to establish if those decisions were properly taken. This, of itself, is not to say that "every detail of the affairs or operation" of a public body must be released to the world at large under FOI, particularly where subject to a duty of confidence.

Record 56 does not contain any information that shows how the Department's ultimate decisions on taxation policy were made in this case. In so far as the details of the consultations concerned can be said to throw light on these decisions, it is relevant that the Department has released from record 56 all details (general though they may be) of the consultations contained therein. Disclosing the identities of the MNCs and their representatives would not give any further insight into how the Department made the decisions that led to the relevant Budget 2014 announcement.

Likewise, disclosing information that would or could enable intrusion into the tax affairs of individual companies, such as that contained in records 2, 7 and 10, would not give any further insight into how the Department made the decisions that led to the relevant Budget 2014 announcement.

Accordingly, I see no basis on which to find that the duties of confidence owed may be excused or authorised in this case, having considered the public interest defence. Thus, it seems to me that to direct the Department to release the remainder of record 56 would result in a breach of a duty of confidence owed to the MNCs concerned, which I am satisfied arises otherwise by law in the circumstances of this case. I find that section 26(2) does not apply, and that the remainder of record 56 is exempt under section 26(1)(b) of the FOI Act. I find similarly in respect of the details in records 2, 7 and 10 that I have found to be exempt under section 26(1)(b).

Decision

Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby affirm the Department's refusal of certain of the details at issue, as specified in the Findings section, under sections 20, 26(1)(b) and 24(1)(c) of the FOI Act. I hereby annul its refusal of the remaining details and direct their release.

I annul the Department's effective refusal of the three further records concerning the consultations it had with the MNCs. I direct it to conduct a fresh decision making process in respect of those records and to inform the applicant of its decision in accordance with section 8 of the FOI Act. That decision is subject to the usual rights of internal and external review.

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.

Peter Tyndall
Information Commissioner