Whether Revenue was justified in refusing access to information and records concerning VRT enforcement under sections 15(1)(a), 29(1)(a), 30(1)(a)/(b)/(c) and/or 32(1)(a)/(c)/(x) of the FOI Act

18 May 2021

Background

In an FOI request of 16 July 2019, the applicant sought access to specified information in relation to VRT stops, vehicles seized, complaints of misconduct in relation to VRT collection, the investigation of such complaints, prosecution of Revenue Officers in relation to VRT collection and internal or external reviews or audits of Revenue’s VRT collection. The request was detailed and ran to nine pages.

Revenue informed the applicant that his request could be refused under section 15(1)(c) of the Act. This is a provision that may be applied (provided certain requirements have been complied with by the FOI body) to requests that, if processed, would cause a substantial and unreasonable interference with or disruption to an FOI body's work. Revenue stated that to answer all parts of the original request would involve significant search, retrieval and copying (SRC) of files, which would result in the charging of a considerable fee in relation to question 4 alone. Revenue offered to assist the applicant to modify his request so that it would no longer fall under section 15(1)(c) and to limit the SRC fees applicable. 

In subsequent correspondence with Revenue, the applicant agreed to modify his request. He stated “I would be grateful to proceed with questions 6 and 8-14. In relation to question 6, I would like to limit that to official complaints received under complaints and review procedures. In relation to question 12, I would like to limit that to 2016 to date. In relation to questions 1-5 and 7, I would be grateful for the opportunity to try and reframe/narrow them with you and then submit a separate FOI request.”

In its original decision of 13 August 2019, Revenue granted access to eight records. It refused to grant access to further information and/or records on the basis of various provisions of the FOI Act, including section 15(1)(a). The applicant requested an internal review of Revenue's decision on 5 September 2019. He sought clarifications and further information in relation to questions 6, 8, 9, 12 and 13. In its internal review decision of 25 September 2019, Revenue granted access to one additional record and it refused access in full or in part to four additional records under sections 30 (functions and negotiations of FOI bodies) and 32 (law enforcement and public safety) of the FOI Act. Revenue also sought to rely on section 15(1)(a) of the FOI Act in its internal review decision. On 16 October 2019, the applicant sought a review by this Office of certain aspects of Revenue's refusal to fully grant access to information and/or records relevant to his request.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and Revenue, to correspondence between the applicant and this Office, to correspondence between Revenue and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of the Review

The applicant’s FOI request contains 14 questions with individual parts which are numbered sequentially as questions 6, 6.1, 6.2 etc. In his internal review request, the applicant introduced a new numbering sequence in which he numbered questions 6, 6(a), 6(b) etc. He also used this new numbering sequence in his application to this Office. A number of the questions that the applicant asked at internal review stage sought additional information, which the applicant had not sought in his original request. This Office does not have jurisdiction to consider the release of any records/information that the applicant did not seek in his FOI request, or to review Revenue’s decision in relation to particular records, which were not included in the application for review to this Office.

The applicant sought a review by this Office of Revenue’s decision on four grounds:

1. Revenue’s estimate of the time and cost to answer question 4 was misleading;
2. Revenue has not satisfied the applicable test for establishing the existence of “prejudice” or “impair” grounds for its refusal to answer questions 6(e), 8(a)/(b), and 9(a)/(c)/(d);
3. In the alternative, the public interest overrides the “prejudice” or “impair” grounds relied on by the Revenue in relation to questions 6(e), 8(a)/(b), and 9(a)/(c)/(d);
4. Revenue’s search for records which relate to Question 12 has been inadequate.

The applicant submits that Revenue’s estimate of the time and cost to answer question 4 should be considered in this review. He contends that “it would plainly run contrary to the purpose of section 22(1)(d) of the Act, if an applicant was required to first accept and incur potentially false and/or inflated costs before being able to avail of a review pursuant to s.22(1)(d) of the FOI body’s decision to charge a fee.”

It was open to the applicant to decide not to modify his request and to seek an internal review of Revenue’s decision in relation to the search and retrieval fee concerning question 4 of his request. The applicant was informed of this option by Revenue. If the applicant was unsatisfied with Revenue’s internal review decision, he could have sought a review by this Office under section 22 of the Act. Instead the applicant chose to modify his request, as per the email he sent to Revenue on 30 July 2019, in which he agreed to modify the scope of his FOI request to questions 6 and 8-14. This Office does not have jurisdiction to consider the release of any records/information that the applicant did not seek in his FOI request as modified and the applicant cannot seek to broaden the scope of this review beyond the scope of his modified FOI request. I am therefore of the view that question 4 falls outside the scope of this review.

In relation to the second and third grounds, Revenue did not rely on any “prejudice” or “impair” grounds in responding to questions 6(e) and 8(b). Revenue refused access to records relevant to questions 6(e) and 8(b) under section 15(1)(a) on the basis that the records concerned do not exist or could not be found. I cannot consider any grounds in relation to questions 6(e) and 8(b) in circumstances where no such grounds were relied on by Revenue and the applicant has not sought a review in relation to the adequacy or otherwise of Revenue’s search for records, which relate to questions 6(e) and 8(b).

Question 9 of the applicant’s FOI request asks “has Revenue’s conduct in relation to the collection of VRT and/or the prosecution of VRT offences been the subject of any internal or external review. If so: 9.1 details of those reviews.” Revenue provided information in relation to three reviews in its original decision. The applicant requested copies of those reviews in his internal review request. In its internal review decision, Revenue refused access in full or in part to the three reviews (records 9, 11, 12) under sections 30 and 32 of the Act, it also refused access in part to an additional review which it had located (record 13) under the same sections of the Act.

In its submissions to this Office, Revenue also relied on additional exemption provisions section 29(1)(a) and 32(1)(c) in refusing access to two of the reviews. This Office notified the applicant of the additional exemptions relied on and the applicant provided submissions in reply. While Revenue has refused access to the reviews under sections 29, 30 and 32 of the Act, it also contends in its submissions to this Office, that the reviews were not sought in the original FOI request and fall outside the scope of the request. I accept that in asking “for details of those reviews” in his FOI request, the applicant was in effect asking for records which contain those details i.e. the reviews themselves. It is therefore my view that the question of whether Revenue was justified in refusing access in full or in part to records 9, 11, 12 and 13 under sections 29, 30 or 32 of the Act falls within the scope of this review.

The fourth ground on which the applicant seeks a review is that the search for records, which relate to Question 12 has been inadequate. Revenue refused access to records which relate to question 12 under section 15(1)(a) in its original and internal review decisions. I find that the issue of whether Revenue was justified in refusing access to records which relate to question 12 under sections 15(1)(a) of the Act falls within the scope of this review.

In summary, the scope of this review is confined to the following questions:

• Whether Revenue was justified in refusing access to records which relate to question 12 under sections 15(1)(a) of the Act;
• Whether Revenue was justified in refusing access in full or in part to records 9, 11, 12 and 13 under sections 29(1)(a), 30(1)(a)/(b)/(c) and 32(1)(a)/(c)/(x) of the Act.

Preliminary Matters

The FOI Act provides for a right of access to records held by FOI bodies (section 11 refers). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. However, requests for information, as opposed to requests for records, are not valid requests under the Act. Parts of the applicant’s request seek information about VRT Enforcement, which must be taken as a request for access to records that would give the applicant the information that he seeks. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or containing the information sought.

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall generally be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Section 18 of the 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, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is 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 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis may be limited in places.

Findings – reasonableness of searches (section 15(1)(a))

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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 his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office’s website at www.oic.ie).

Revenue refused access to records which relate to question 12 of the applicant’s FOI request under section 15(1)(a) of the Act. At question 12, the applicant requested information from 2016 to July 2019, relating to discussions and/or other consideration of the performance, management, supervision, risk controls, reviews, or investigations, relating to VRT enforcement, as contained in emails or other documentation passing between the Chairman and/or the Commissioners and/or the Revenue Solicitor’s Office or other senior management of the Revenue Commissioners.

The applicant states that the Revenue National Prosecutions & Seizures (NPSO) Unit/VRT enforcement have been the subject of a number of Revenue audits and reviews. He contends that it is inconceivable that records do not exist which relate to question 12 of his request for example board minutes, or emails between senior management, internal audit, the Chairman’s Office, and/or the Revenue Solicitor’s Office.

During the review process, this Office’s Investigator asked Revenue about the steps it had taken to search for records within the scope of the review and its record-management practices. Revenue’s response to these queries was provided to the applicant and is set out in summary here. It includes a statement of the offices to which the FOI request was circulated, the searching mechanisms utilised, and the types of locations and facilities of which searches were carried out for relevant records.

Revenue states that all records created or received by staff in the course of their duties on behalf of the organisation are retained for as long as they are required to meet legal, administrative and operational requirements. After a prescribed period of time, details of which were provided, records undergo authorised destruction, retention or transfer to the National Archives. Revenue states that having regard to the dates of records requested in this case, they would not have fallen to be destroyed.

Revenue states that its conduct in relation to VRT enforcement was the subject of a complaint investigated by the Ombudsman’s Office which led to the publication of an investigation report. It states that it provided the applicant with a copy of the report further to question 9 of his request. Revenue states that in relation to question 12, the applicant narrowed the timeframe for records to the period January 2016 to July 2019 and it states that there were no relevant Ombudsman investigations with this time frame.

Revenue’s submission to this Office also outlines its document management processes regarding reviewing and updating enforcement and VRT manuals. It explains how automatic workflows and dashboards are used. Revenue states that the automation of the system has significantly reduced the need for emails, working drafts and discussions other than those that are inbuilt within the system for workflow, collaboration and security purposes. In summary, Revenue states that a thorough search for records was conducted and as no records relating to this question within the relevant timeframe were located, this part of the request was refused under 15(1)(a) of the FOI Act.

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, while the applicant is of the view that further records should exist, no specific evidence that this is the case is before me.

Taking into account the search details provided by Revenue, its responses to the applicant's points above, and to this Office's queries, I am satisfied that Revenue has conducted reasonable searches to locate records relevant to question 12 of the applicant’s request and I find accordingly.

Findings – substantive exemptions

Revenue refused access in full or in part to records 9, 11, 12 and 13 under sections 29(1)(a) and/or 30(1)(a)/(b)/(c) and/or 32(1)(a)/(c)/(x) of the Act. Record 9 is a Service Design Workshop - Review of Prosecution referrals to the National Prosecutions and Seizures Office (NPSO). Record 11 contains NPSO quarterly management reports. Record 12 is an NPSO Internal Audit. Record 13 is an Internal Audit Report on Payment Procedures in Customs and Excise Enforcement Stations at the Roadside. Having regard to the content of these records, in my view section 30(1)(a) is the appropriate exemption provision to consider first.

Section 30 - Functions and Negotiations of FOI Bodies

Section 30(1)(a)

Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

When invoking section 30(1)(a), the FOI body should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In examining the merits of an FOI body's view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

In his submissions to this Office, the applicant states that Revenue has failed to meet the test necessary to establish “prejudice” as required by section 30(1)(a) of the Act. He contends that Revenue has simply made blanket assertions of “harm” relating to generalised “internal systems” in respect of the entirety of the undisclosed sections of records 9, 11, 12 and 13. The applicant maintains that it has not adequately set out either what those “internal systems” are, or provided actual evidence necessary to assess the “reasonableness” of any expectation that such “harm” will occur.

The applicant says he suspects that the information contained in the undisclosed sections of records 9, 11, 12 and 13 is not qualitatively different from information contained in documents revealing Revenue’s VRT “internal systems” that are already published by Revenue on its website, for example, Revenues VRT enforcement manuals - which publicly set out in detail Revenue procedure and methods and how Revenue VRT enforcement powers can and cannot be used. The applicant contends that Revenue cannot reasonably assert “harm” as a reason not to disclose information contained in a record if it has already publicly disclosed in a different document materially similar information.

In its submissions to this Office, Revenue states that records 9, 11, 12 and 13 contain information in relation to the detection and investigation of offences and the methods and procedures employed for these purposes. It states that cases handled by the NPSO are frequently prosecuted in Court and it contends that release of these records could reasonably be expected to prejudice the effectiveness of investigations into VRT offences.

Section 30(1)(a) refers to "investigations, inquiries or audits". In this case the records contain information in relation to investigations. I am satisfied that the records are the type of record envisaged by section 30(1)(a).  The next question that I must address is whether release of the records could reasonably be expected to cause the harm envisaged.

I am limited in how I can describe exempt records. A significant amount of the information withheld from records 9, 11, 12 and 13 concerns enforcement in anti-fraud, marked mineral oil, tax and excise licence cases. As part nine of the applicant’s request concerns VRT collection and prosecutions, I have not considered this information. A certain amount of the withheld information also concerns VRT. The withheld parts of record 9 include information in relation to the safety and security of enforcement officers when dealing with VRT cases, the handling of money by enforcement officers, challenges faced by enforcement officers in Court proceedings, perceived limitations of C-NET, Revenue’s internal system of communications and access to C-Net by enforcement officers. The information withheld in record 11 includes information in relation to live VRT cases, the unique identification number of these cases, specific details of VRT enforcement cases and cases deemed unsuitable for prosecution.

The withheld parts of record 12 includes information in relation to cases on C-NET and to suggestions to address perceived deficiencies of CNET. Much of the information withheld from record 12 concerns a review of prosecutions in matters other than VRT. Record 13 contains information in relation to methods and procedures for ensuring the safety and security of officers and cash following collection of payments in stations and at the roadside. The withheld parts of record 13 include information in relation to how penalties are collected, the storage of cash collected, security measures in place, and lodgement of cash and security of enforcement officers. There is also information withheld in relation to safety and security measures employed in certain identified Revenue stations throughout the state.

I am satisfied that the type of information withheld from these records is not similar to information contained in publically available VRT enforcement manuals.  It seems to me that it is reasonable to expect, as Revenue claims, that releasing into the public domain details of, live VRT enforcement cases, safety and security matters and Revenue’s internal system of communications could prejudice its VRT enforcement function and the effectiveness of investigations and/or the procedures and methods employed by Revenue in carrying out this function. This is because non-compliant taxpayers would be in a position to circumvent the procedures used by Revenue in its investigations and could take counter measures to limit the effectiveness of information sources and tools used by Revenue to confront non-compliance. I find, therefore, that the information withheld from records 9, 11, 12 and 13 is exempt under section 30(1)(a) of the Act.

Section 30(2) - the Public Interest

As a result, I am now required to apply the public interest balancing test under section 30(2) of the FOI Act. In relation to the public interest test contained in section 30(2), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

In a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors.) available on our website www.oic.ie, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The applicant contends that there is an overwhelming public interest in knowing the rules and procedures applied by Revenue in VRT enforcement; and/or if there are defects or other problems in Revenue’s VRT enforcement operations and/or its administration by Revenue management.

Revenue states that the withheld records reveal systems, procedures and methods used by Revenue in its law enforcement effort. It contends that if this information was revealed to the world at large, it could be exploited by non-compliant tax-payers, cross border smugglers or criminal elements to circumvent laws and controls for their own illegitimate purposes. Revenue maintains that as these records could reveal information that could be exploited for illegal purposes, it is not in the public interest for them to be disclosed to the world at large.

I accept that full details of the procedures relating to Revenue’s investigations, particularly details relating to live cases and perceived vulnerabilities in systems, may be open to misuse if released to the world at large. In the circumstances of this case, as set out above, I am satisfied that the information withheld would reveal processes undertaken by Revenue in its law enforcement capacity. On that basis, I recognise the public interest in protecting certain details of Revenue’s internal procedures, to enable it to perform investigations.

As I have stated above, in line with my responsibilities under section 25(3) of the FOI Act, I am limited in the level of detail I can provide about exempt records. From an examination of the withheld information, I do not see a public interest in favour of releasing the information beyond the general interest in knowing how Revenue carries out its functions. However, in line with the Supreme Court’s findings in the Minister for Communications judgment, I do not consider this interest is sufficient to tip the balance in favour of release of the information. It is therefore my view that section 30(2) of the FOI Act does not apply to the withheld parts of these records.

Accordingly, I find that Revenue was justified in withholding the records in part under section 30(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm Revenue's decision:

• I find that 15(1)(a) of the FOI Act applies to question 12 of the applicant’s FOI request;
• I find that section 30(1)(a) of the FOI Act applies to the withheld parts of records 9, 11, 12 and 13.

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.

 

Deirdre McGoldrick

Senior Investigator