Mr B and Office of the Revenue Commissioners

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 22 September 2015
• Case Outcome: The Senior Investigator varied the decision of the Revenue in respect of question 1.4f of the request to reflect her finding that the applicant had not demonstrated a material interest as required under the provisions of section 18 of the FOI Act and that he was not, therefore, entitled to a statement of reasons for the act identified. She affirmed the decision of the Revenue to refuse the applicant?s request access to records in respect of question 3.2 of the request.
• Record Number: 150084
• Court: Information Commission
• Respondent: Office of the Revenue Commissioners

Whether the Revenue fulfilled the requirements of section 18 of the FOI Act in relation to the applicant's request for a statement of reasons regarding its conduct of an internal promotion competition, and whether the Revenue was justified in refusing access to records on the basis of sections 21 and 27 of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 7 July 2014, the applicant made a request under the FOI Act to the Revenue. His request was entitled "Request for Information Under Section 16 [sic] of the Freedom of Information Act, 1997" and was presented in the format of a large number of questions about different aspects of a recent internal promotion competition held by the Revenue. On 6 August 2014, the Revenue notified the applicant that it was releasing some records, and provided him with some of the answers to the questions posed by him. On 2 September 2014, the applicant sought an internal review of the Revenue's decision, stating that it had refused "to provide several key pieces of information relating to the test process and the test results." On 23 September 2014, the Revenue upheld its original decision. On 23 March 2015, the applicant applied to this Office for a review of the decision.

Following communications between Simon Noone, Investigator with this Office, and the parties, the Revenue released further information/records to the applicant, in an attempt to resolve the matter. However, the applicant subsequently advised Mr Noone that he was unhappy with the contents of the additional material furnished to him, and that he did not consider the matter to have been settled. Consequently, 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 correspondence between the parties and with this Office, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was 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.

Preliminary matters

It appears to me that there has been some degree of confusion on the part of both the applicant and the Revenue regarding the type of application being made under the FOI Act. The applicant framed his request as one "for information under section 16" of the Act. The Revenue, however, treated his application as being one for access to records, and indeed advised him that the FOI Act "relates to 'a right of access to records held' by public bodies, rather than requests for information in the broader sense."

Section 7 of the FOI Act provides a right to request access to records. Normally, one would expect that where the answer to a question posed by an applicant lies in a record held, the public body would treat such record as being within the scope of a section 7 request. Additionally, however, section 18 of the Act provides a right to a statement of reasons regarding acts of public bodies affecting the requester. In my opinion, the applicant's request to the Revenue encompassed both these provisions of the Act. Some of the questions related to reasons for "acts", whereas other questions sought records purportedly held by the Revenue.

In my opinion, some of the confusion arose due to the manner in which the request was framed. The applicant stated that he was seeking information under section 16 of the Act. I am satisfied that this was a mistake on his part, as that section concerns the publication of information by public bodies regarding the rules and procedures followed by them when considering requests under the Act. I am satisfied that the applicant intended to make his request pursuant to section 18. However, the Revenue seems to have treated his application as one brought under section 7. It did provide answers to some of the questions asked, but stated that it was doing so "outside of the FoI process".

The Freedom of Information Act 1997 (Section 18) Regulations 1998 (SI 519/1998) state that "An application under section 18 shall be expressed to be made under that section" (reg. 3). As has been seen, the applicant stated that his request was made under section 16, and therefore it would appear to fall foul of this regulation. However, reg. 5 provides inter alia that

"Where a public body receives... an application which does not purport to be an application under section 18 but which requests information access to which can be obtained only by way of an application under section 18, the head shall assist, or offer to assist, the individual in the preparation of an application under that section."

In my opinion, some of the questions asked by the applicant of the Revenue concerned information which could only have been obtained by way of section 18. It does not appear to me that the Revenue assisted the applicant in the manner required by reg. 5, and therefore I should consider the applicant's request, insofar as it concerns section 18, to be valid. This is accordance with a previous decision of the Commissioner, Case No. 020281 (Mr. X and the Department of Education and Science, on www.oic.ie).

Scope of the Review

Although the Revenue refused access/information in respect of a large number of the questions posed by the applicant, in his submissions to this Office, and during a further telephone conversation with Mr Noone, the applicant confirmed that he wished to limit his appeal to two main points. These are set out in the original request as follows (I will continue to use the applicant's numbering for convenience):

"1. Candidate success rate

1.4 (f) How was the group of candidates added to the reserve panel selected?

[...]

3. Questions undertaken in Test

3.1 Wish to personally confirm the scores allocated to me.
3.2 Wish to see the questions that I undertook.
3.3 Wish to see the answers that I provided.
3.4 Wish that Revenue state how many of my questions were answered correctly.
3.5 Wish to know if all questions carry same score value.
3.6 If a...