Mr X and Office of the Revenue Commissioners

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 18 May 2021
• Case Outcome: The Senior Investigator affirmed Revenue's decision.
• Court: Information Commission
• Respondent: Office of the Revenue Commissioners
• Record Number: OIC-67725-S4Q4S3

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:

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