Case number: 170363
On 4 May 2017, the applicant submitted an FOI request to Revenue for access to records relating to "irrecoverable payroll deductions" covering the period 2007 to 2016 (Part 1). On 31 May 2017, Revenue issued a decision granting the request in part. It refused access to further records under section 15(1)(a) of the Act. On 1 June, the applicant made a further request for access to details of "a breakdown [including names and addresses] of employers whose payroll deduction was deemed irrecoverable for the €40m in 2016" (Part 2). Revenue treated the additional request of 1 June as part of the applicant's original request. Consequently, in a letter dated 13 June 2017, Revenue advised the applicant that it was refusing access to information in the records related to the applicant's additional request. However, while Revenue stated in the letter that Section 851A(2) of the Taxes Consolidation Act 1997 applied to withheld information, it did not refer to a section of the FOI Act as the basis for the exemption.
The applicant applied for an internal review on 26 June 2017. In its decision Revenue clarified the refusal of information based on Section 851A(2) of the Taxes Consolidation Act and refused access to information in those records (the second part of the request) under section 35(1)(b) of the FOI Act. Revenue also stated that under the provisions of section 21(2)(b)(ii) of the FOI Act, it had annulled the original decision to refuse access to other records (the first part of the applicant's request) under section 15(1)(a), i.e. that the records were not held.
On 7 July 2017 the applicant sought a review by this Office of the decision of Revenue.
In conducting this review I have had regard to the submissions of the Revenue and the applicant, and to correspondence between the applicant, the Revenue, and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions, where applicable.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I also wish to make it clear that, in so far as the remaining excerpts of the records are concerned, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on Revenue to satisfy the Commissioner that its decision is justified.
I understand the applicant's frustration at not having had clarity around the outcome of his request, first made in May 2017. However, it seems to me that Revenue could have taken his request of 1 June 2017 as a completely new request under the Act. Instead, it treated it as part of the original request, with the result that the subsequent internal review covered two decisions. I accept that Revenue invited the applicant to contact it to discuss the issues and assist his understanding of the process. Also, I appreciate that additional information in the internal review decision may have caused confusion about how Revenue proposed to deal with the request. However, I note that Revenue contacted the applicant on 9 August and explained that it was prepared to make a new first instance decision on his request but asked the applicant to clarify whether he wished that process to continue, or if he would await the outcome of this review. The applicant said he would wait for a decision of this Office on this review.
Revenue's internal review decision on Part 1
In its letter to the applicant, Revenue stated that in accordance with section 21(2)(b)(ii) of the FOI Act it was annulling the original decision on the part of the request concerning records on the irrecoverable payroll deductions 2007 to 2016. It said that it "propose[d] that a fresh decision making process takes place in respect of [the] original request". In what appears to be an effort to provide further information to the applicant, the internal reviewer said that following further research, he was able to provide a table of "write-offs" for 2007-2016. His decision explained what further information might be provided with "a significant lead in time". He indicated that refining data would incur disproportionate cost and staff time.
Section 21(2)(b)(ii) of the FOI Act provides that the head of the FOI body, following the review, may, as he or she considers appropriate, annul the decision, "and, if appropriate, make such decision in relation to the matter as he or she considers proper, in accordance with the Act". However, it does not provide for annulment in isolation, the effect of which would be to state that no decision on the request has been made at all.
The FOI Act “enable[s] members of the public to obtain access [to information], to the greatest extent possible” and “provide[s] for the independent review of decision of such bodies”. It seems to me that the Oireachtas could not have intended that public bodies should be able to make a decision at internal review that could potentially continue to remit the matter back to the original decision maker, without making a decision on whether to release the records. While I appreciate that it was not the intention of Revenue in this case, to have such an outcome, it could have the effect of not only permitting a public body to avoid or delay making a decision on a request, but of depriving a requester of the opportunity to apply to the Commissioner under section 22 of the Act, for a review of that decision. I note that this Office sometimes annuls and remits a decision of an FOI body and directs the body to make a fresh decision. However this is in circumstances where the Commissioner's decision is normally the final, binding decision unless it is appealed to the High Court on a point of law.
Section 19(2) - 'Deemed refusal' of Part 1 of the request
Section 19(2) of the FOI Act provides that where notice of a decision under section 21 is not given to the person who made the application concerned under that section before the expiration of the period specified in subsection (4) thereof, a decision affirming the decision to which the application relates shall be deemed for the purposes of this Act to have been made upon such expiration.
In its submission to this Office, Revenue explained that the original decision was annulled "to enable a fresh examination of records to be undertaken and to ensure the release of all possible records to [the applicant]". I am also aware that Revenue advised the applicant about other sections of the Act which may be applied when considering a new decision, and that the internal reviewer "felt it was reasonable to inform the [applicant]" about that process.
In spite of the fact that Revenue stated it was prepared to engage with the applicant to consider a new original decision, the reality is that its failure to give a decision on the applicant's internal review request amounts to a deemed refusal and I intend to proceed on that basis.
This review is solely concerned with whether the decision of the Revenue to refuse part of the applicant's request on the basis of a deemed refusal (section 19(2) refers), and another part of the request under section 35(1)(b) of the FOI Act was justified.
Are records held on Part 1? Section 15(1)(a)
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. Revenue seems to accept that some records are held on the irrecoverable payroll deductions within the scope of this part of the request. Indeed, it inferred that the extent of the records was such that their retrieval and examination might cause unreasonable interference with its work. However, it may be helpful to set out the FOI Act’s requirements as regards collation of information in this type of situation.
The Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices.
Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required. If the information sought was held only in hard copy files and was not collated into discrete records, it could be the case that the records sought do not exist. While section 17(4) expressly requires FOI bodies to extract data held electronically, provided it can do so by taking reasonable steps, there is no express corresponding requirement to extract data where records are held in hard copy.
It seems to me that in this case, Revenue will have to consider under section 17(4) the reasonableness or otherwise of the steps it would have to take to use its IT systems to extract any records falling within the scope of the request. If, having taken such steps, it extracts certain records, it will then have to consider those in the normal way to establish whether any exemptions apply.
In the circumstances, I have no alternative but to annul the decision on this part of the request and direct Revenue to undertake a fresh decision-making process in respect of the applicant's request and to inform the applicant of the outcome of its decision, in accordance with section 13 the FOI Act. This is not a case where it would be appropriate for me to make a first instance decision as there are several scenarios which may arise, depending on whether extant records are held, and the number and extent of these and/or their content.
Section 35(1)(b) - Part 2
This part of the decision by Revenue concerns the applicant's request for access to a record concerning "a breakdown [to include the names and addresses] of the employers whose payroll deduction was deemed irrecoverable for the €40m in 2016".
Section 35(1)(b) provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that a breach of an equitable duty of confidence is comprehended by section 35(1)(b).
In the Supreme Court decision in the case of Mahon v Post Publications Ltd IESC 15,  3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. 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 applicant questioned whether disclosure of information in the records would constitute a breach of duty of confidence. He questioned how Revenue could claim confidentiality on names that it already made public. He stated that Revenue held information in the form of 'write-offs' and that it publishes a 'Tax Defaulters List' on a quarterly basis, and releases names and addresses relating to receiverships, bankruptcies etc.
Revenue stated that its 'Write-Out Office' holds electronic reports for each tax year and that each report contains thousands of records under a number of headings. It stated that it has a statutory obligation to maintain taxpayer confidentiality in accordance with section 851A of the Taxes Consolidation Act 1997. Revenue also stated there are circumstances in which it can disclose taxpayer information, but that other than in specific circumstances under section 851A(8) of the Taxes Consolidation Act, it cannot disclose that information. It confirmed that disclosure of relevant tax settlements and details of penalty determinations by the Courts are publishable in a 'List of Tax Defaulters', in Iris Oifigiúil, in accordance with section 1086 of the Taxes Consolidation Act.
The applicant requested access to employer payroll deductions deemed 'irrecoverable' relating to 2016. Revenue stated that while the majority of cases that are passed as irrecoverable are on foot of insolvency, there are several other scenarios where tax can be passed as irrecoverable. This would appear to be borne out in a list of scenarios in the 'Write-Out of Uncollectable Tax Debts' document furnished to this Office by the applicant. The list defines the most likely types of scenarios where tax can be passed as unrecoverable and includes unfounded liability, compassionate grounds and uneconomic to pursue, in addition to liquidations, receiverships and insolvencies.
Revenue said that it does not have a record of what is in the public domain and that the names and addresses on its system may differ from those in the public domain. It stated that while insolvency scenarios may be in the public domain, non-insolvency scenarios are not, and tax liabilities may not be, in the public domain. In addition, Revenue said that it does not deem all of the debt in the scenarios mentioned above as irrecoverable, and that this information is not in the public domain. Revenue confirmed to this Office that in order to electronically generate a record to address this part of the request, it would effectively involve first checking which details of identifiable taxpayers were in the public domain and which were not. Revenue stated that even if taxpayer information is in the public domain "by whatever means", it will never release that information as it is prevented from doing so by section 851A of the Taxes Consolidation Act.
The applicant requested information held by Revenue relating to a particular year (2016). Accordingly, I accept that Revenue treated this as a request for access to a single record. I note the applicant's arguments that certain information within that record may be in the public domain. However, this part of his request is for information in a particular record, which I consider contains confidential taxpayer information. It is clear that Revenue do not regard all tax in a given year as unrecoverable and that there are scenarios, such as where a company goes into liquidation, where funds may yet be recovered. I also accept that the record would include non-insolvency type scenarios, i.e. information that is not in the public domain.
Revenue stated that it is not in a position to determine what information is in the public domain and whether all tax detailed in the record can be classed as unrecoverable. In such circumstances, I am of the view that it would impracticable to redact information on the basis of section 18 of the FOI Act.
In the circumstances, I accept that section 851A of the Taxes Consolidation Act provides for confidentiality of taxpayer information. I am satisfied that the information concerned has the necessary quality of confidence about it, and that an obligation of confidence exists with respect to the record sought in this case. I am also satisfied that disclosure of the requested information under FOI would result in an unauthorised or wrongful use of the information that would be detrimental to the interests of the affected third parties. Accordingly, I find that the requirements for an equitable duty of confidence are met in this case and that section 35(1)(b) therefore applies.
Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence. This Office takes the view that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, no such public interest grounds arise in this case.
In addition, while Revenue did not refer to the mandatory exemption at section 41(1)(a) of the FOI Act, it is open a public body to consider whether that exemption could be applied to a record, on the basis that disclosure of the relevant information was prohibited by an enactment.
Accordingly, I find that Revenue was justified in withholding the information in the record at issue under section 35(1)(b) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of Revenue. I annul its decision to effectively refuse access to the Part 1 records to the applicant, and direct it to make a new first instance decision on that part of the applicant's request. I direct Revenue to inform the applicant of the outcome in accordance with section 13 of the FOI Act. I affirm Revenue's decision to withhold information in other records on the basis of section 35(1)(b).
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.