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Whether the Revenue was justified in part refusing the applicant's request for access to records held on his tax file under sections 30, 31 and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 5 May 2015, the applicant requested access to his "entire tax file". He subsequently restricted his request to the years 2006 onwards. On 8 June 2015, the Revenue issued its decision on the request in two parts. The Revenue Solicitors Office (RSO) identified 54 records as coming within the scope of the request. It granted full access to 16 records, part access to 7 records and refused access to 31 records. The Revenue's South West Region (SWR) identified 49 records as coming within scope. It granted full access to 38 records, part access to 1 record, and refused access to 10 records.

On 15 June 2015, the applicant sought an internal review of the Revenue's decision. On internal review, the Revenue varied its original decision. In respect of the RSO, it part-released one additional record. In respect of the SWR, it part-released an additional three records, and fully released an additional two records. On 28 August 2015, the applicant sought a review by this Office of the Revenue's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties and to the provisions of the FOI Act.

In referring to the records at issue in this case, I have adopted the numbering system used by the Revenue in the schedules it forwarded to this offie for the purpose of the review.

Scope of the Review

This review is concerned with whether the Revenue was justified in refusing access, in whole or in part, to the following records:

RSO: Records 2, 3, 5, 7 (part), 8 (part), 9, 10 (part), 11(part), 12, 14, 15 (part), 17 - 20, 22, 24, 26, 28 - 32, 34, 36, 38 (part), 39, 41, 42, 44, 46 (part), 47, 49 (part), and 50 - 54

SWR: Records 11 (part), 40, 42 (part), 43, 44, 45 (part), 47, 48, and 49.

Findings

The Revenue refused access under sections 30(1)(a), 30(1)(c) and 31(1)(a). As section 31 has been relied upon for the majority of the withheld records, I will consider the applicability of this exemption first.

Section 31(1)(a)

Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The Revenue has claimed that litigation privilege attaches to the following records

RSO: Records 2, 3, 5, 7 (part), 8 (part), 9, 10 (part), 11 (part), 12, 14, 15 (part), 17, 18, 19, 20, 22, 24, 26, 28, 29, 30, 31, 32, 34, 36, 38 (part), 39, 41, 42, 44, 46 (part), 47, 49 (part), 50, 51, 52, 53 and 54

SWR: Records 47, 48 and 49.

In my view, section 31(1)(a) is also of relevance to those parts of SWR records 42 and 45 to which access was refused. It should be noted that the withheld parts of the two records are identical.

For litigation privilege to apply, there must be contemplated or pending litigation and the records must have been created for the dominant purpose of that contemplated or pending litigation. This Office accepts that in certain circumstances litigation privilege may attach to internal communications, provided that the dominant purpose for their creation is contemplated or pending litigation. This Office is also satisfied that litigation encompasses not alone court proceedings but also proceedings before tribunals exercising judicial functions, such as the Appeal Commissioners. The background to this review is that the applicant has appealed against the Revenue's assessment of tax for the years 2006-2010. The appeals process is ongoing, and a hearing before the Appeal Commissioners has not yet taken place.

Having considered the contents of the above records, I am satisfied that the dominant purpose for which they were created or prepared was the preparation for the contemplated/pending appeal to the Appeal Commissioners. Therefore, I am satisfied that litigation privilege attaches to these records, and that they are consequently exempt from release under section 31(1)(a). The records remaining to be considered, therefore, are SWR records 11 (part), 40, 43 and 44.

Section 30

SWR record 40 was refused access under section 30(1)(a), and SWR records 43 and 44 were refused under sections 30(1)(a) and 30(1)(c). Section 30 is a discretionary exemption. Subsection (1)(a) provides that a body may refuse to grant a request if access to the records could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is subject to a public interest balancing test in subsection (2).

In arriving at a decision to claim an exemption under section 30(1)(a), a body must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.

Record 40 is a print out of the applicant's business risk profile. In its submission to this Office, the Revenue argued that it contains information regarding Revenue's compliance testing and case selection methods and that release of the record "would have a direct negative impact on the effectiveness of Revenue's tests in that it would divulge the risk criteria considered by Revenue in deciding which cases are selected for examination and thus facilitate the avoidance of such examinations. There is a significant level of interest in understanding Revenue's Risk Rules and Case Selection methods in order to minimise the likelihood of having one's tax affairs selected for examination..."

I accept that the release of record 40 would disclose details of the risk criteria considered by the Revenue in the selection of cases for examination. I also accept that the release of such details could facilitate the avoidance of such examinations. I am satisfied, therefore, that the release of record 40 could reasonably be expected to prejudice the effectiveness of the procedures or methods employed by the Revenue for conducting such examinations and that section 30(1)(a) applies.

Records 43 and 44 are reviews of the applicant's case. Record 43 contains an analysis by a Revenue official of the applicant's case. It contains details of relevant case law and factors for consideration in a possible challenge to a Revenue determination. Revenue argued that the release of record 43 would provide an insight not only into Revenue's position and thought processes in the applicant's case but would also provide an insight into its methods of reviewing cases.

Record 44 contains very similar information to that contained in record 43 with the addition of a brief analysis of the potential relevance to other similar cases. Revenue argued that the release of the record and resultant disclosure of its analysis in the applicant's case could have an adverse effect on the other cases also. I accept that both records provide a significant insight into the Revenue's position regarding the applicant's case, and the possible outcome of his appeal, and furthermore I accept the Revenue's contention that this analysis could be used to disclose its position in respect of other similar cases. I am satisfied that the release of the records could reasonably be expected to prejudice the effectiveness of its future Revenue audits concerning similar matters. Therefore, I accept that section 30(1)(a) applies

Section 30(2) provides that section 30(1)(a) does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request. As a general proposition, I agree that there is a public interest in public bodies operating in an open and transparent manner. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm which might be occasioned by its release. In my view, there is a significant public interest in protecting Revenue's ability to prevent and detect tax evasion. Consequently, I find that the public interest would not, on balance, be better served by the release of the records at issue. I find, therefore, that Revenue was justified in refusing access to records 40, 43 and 44.

Section 37

Finally, a small amount of SWR record 11 was redacted on the basis that it was exempt under section 37. This is a mandatory exemption that protects personal information from release under FOI. In its original decision letter, the SWR stated that "The exempt section contains personal information - Names and Serial Numbers relating to third parties. I have deleted (blacked out) these parts from the copy of the record being released to you."

Section 37(7) of the FOI Act states that "Notwithstanding paragraph (a) of subsection (2), a head shall, subject to paragraphs (b) to (e) of that subsection and subsections (5) and (8), refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester." 'Personal information' is defined in section 2 and includes "(ii) information relating to the financial affairs of the individual". I am satisfied that record 11 contains a small amount of information relating to the financial affairs of persons other than the applicant.

There is nothing before me to suggest that any of the exceptions set out in section 37(2) are applicable in this instance. Neither do I consider subsection (8) to be of relevance. Additionally, I do not believe that the granting of the request for access would benefit those individuals, other than the applicant, as required by subsection (5)(b). Therefore, I believe that the remaining issue for me to consider is the public interest test as stated in subsection (5)(a).

The right to privacy has a constitutional dimension, as one of the unenumerated personal rights under Article 40.1 of the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. The fact that the records contain personal information pertaining to the applicant is not sufficient, by itself, to defeat the right to privacy of those other persons to whom they relate.

I am satisfied that there is a strong public interest in protecting the privacy of an individual's financial affairs, including his dealings with the Revenue. In my view, the public interest in release of third party personal information to the applicant is not particularly compelling in this instance, and I am satisfied that the public interest against release is stronger. Therefore, I find that the Revenue was justified in redacting the third party information in SWR record 11 before its release to the applicant.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of Revenue in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator