Whether Revenue was justified in refusing access to records relating to Eircode and Stamp Duty, under section 29 of the FOI Act

18 June 2021

Background

On 14 October 2020, the applicant made an FOI request to Revenue for “all records relating to adding Eircode to revenue databases specifically but not exclusively the Stamp Duty Return System”. On 17 October 2020 the applicant narrowed his request to “records for Eircode and Stamp duty from 28 April 2014 until now. I'm looking for records that show what plans the Revenue had to introduce Eircodes into the dataset for stamp duty and how those plans were implemented.” On 16 November 2020, Revenue refused access to the records on the ground that they were exempt under section 29 of the FOI Act. On 16 November 2020, the applicant applied for an internal review. On 8 December 2020, Revenue issued its internal review decision. It affirmed its original decision under section 29 and identified additional records, to which it also refused access under section 29. On 11 December 2020, the applicant applied to this Office for a review of Revenue’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and Revenue as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by Revenue for the purposes of this review.

Scope of the Review

Revenue scheduled 15 records. On examining Record 10, I note that it does not relate to Eircode and stamp duty. The Investigator asked Revenue about this point. Revenue said that it scheduled Record 10 because it attaches Record 4, which relates to the scope of the request. In view of the content of Record 10, I consider that it falls outside the scope of the applicant’s FOI request and therefore this review. I also note that Records 8, 9, 11, 12 and 13 contain small pieces of personal information. Specifically, they disclose the mobile telephone numbers and annual leave details of individuals other than the applicant, as well as the names and contact details of people other than the staff of FOI bodies. During the review, the applicant confirmed that he does not seek access to such information. Those pieces of personal information therefore fall outside the scope of the review.

Accordingly, this review is concerned with whether Revenue was justified in refusing access to the withheld records within the scope of this review under section 29 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 29 – Deliberations of FOI bodies

Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release.

Regarding the application of exemptions, I note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court said that “any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.”

Submissions

Revenue says that the relevant deliberative process is the consideration of whether and when Eircode will be included in stamp duty records. It says that this process is ongoing. Revenue submits that it is contrary to the public interest to release the records and that disclosure would undermine the incomplete deliberative process. It says that the records disclose difficulties to be resolved in implementing Eircode in Revenue systems. It says that disclosure could cause harm by disclosing details of Revenue’s systems which could be exploited. Revenue says that the records form part of Revenue’s deliberative processes regarding everyday operations involved in ensuring compliance with tax and customs laws and release would undermine these ongoing operations.

The applicant says that Revenue has failed to provide evidence of how releasing the records would undermine its operations. The applicant says that the addition of Eircode has no relationship with tax/customs law. The applicant says that it is in the public interest to know why the Revenue has failed for five years to make a one-line change to the input of the stamp duty system to make the price register effective.

Analysis and Findings

Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation.

The records contain the following information: a summary note of Revenue deliberations on Eircode and stamp duty; internal Revenue email correspondence about Eircode and stamp duty; correspondence between Revenue and other agencies about Eircode and stamp duty; and internal Revenue email correspondence containing a query about Eircode from a public representative.

Having examined the records, I consider that some records contain factual information, e.g. background facts as opposed to proposals or recommendations, such as Record 1. However, given my conclusion on section 29(1) below, I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision.

A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Having examined the records and considered Revenue’s submissions, I accept that the records contain matter relating to a deliberative process about introducing Eircode into stamp duty records. I therefore find that section 29(1)(a) applies to the records. I am then required to consider section 29(1)(b).

The Commissioner has found that the FOI Act envisaged that there will be cases in which disclosing the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. The Commissioner does not accept that the purpose of section 29 is to protect the deliberative process until its completion. If it were, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

I must therefore consider the harms claimed by Revenue in relation to the records. I will address one record separately below (Record 9). References to “the records” hereafter exclude Record 9. Revenue claims that release could impede its operations in ensuring compliance with tax and customs laws. However, it has not substantiated this general assertion. Neither is it apparent to me from examining the content of the records how releasing them could result in such a harm. I am therefore not satisfied that there is a link between release of the information concerned and the alleged harm. Revenue also claims that release would undermine the deliberative process itself. However, it has not shown how this would be the case. Neither is it apparent to me on my own examination of the records.

Revenue says that disclosure would reveal details about its system which could be exploited, as well as potential issues in the implementation of Eircode. It is true that the records disclose discussions about the issues involved in introducing Eircode into stamp duty records: the system changes which would be needed, the risks arising, and the other agencies who would need to be involved. This is the kind of content to be expected in the deliberative material of an FOI body. However, having regard to Revenue’s submissions and the specific content of the records, I am not satisfied that their disclosure would be contrary to the public interest. I find that section 29(1)(b) does not apply and Revenue was not justified in refusing access to the records under section 29.

Record 9 discloses a particularly high level of detail about the operation of Revenue’s internal computer system. I accept that disclosing this level of information would be contrary to the public interest, as it could be exploited and thereby undermine Revenue’s processes. I have applied section 18 in reaching my conclusion. I find that Revenue was justified in refusing access to Record 9 under section 29.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary Revenue’s decision as follows. I affirm its decision on Record 9 under section 29 of the FOI Act. I annul its decision on the other records and direct their release. For the avoidance of doubt, that excludes the information which falls outside the scope of this review, as outlined above.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Deirdre McGoldrick

Senior Investigator