Mr X and The Department of Finance

JudgePeter Tyndall Information Commissioner
Judgment Date19 November 2015
Case OutcomeThe Commissioner affirmed the Department's decision to refuse access to some of the material at issue under sections 20, 24 and 26. However, he found that the Department had not justified its refusal of access to the remaining material and directed that it be released. He annulled the Department's refusal to confirm the existence of three further relevant records and directed the Department to undertake a fresh decision making process in respect of those records.
CourtInformation Commission
Record Number140057
Respondentthe Department of Finance
Whether the Department was justified in refusing to release certain records relevant to the applicant's request for records "relating to the Budget decision to create a new law prohibiting companies from being 'stateless' in terms of the place of their tax residency and the decision not to bring this requirement in until the end of 2014"
Conducted in accordance with section 34(2) of the FOI Act, by Peter Tyndall, Information Commissioner

On 30 October 2013, the applicant made an FOI request to the Department for records, dating from 1 February 2013, "relating to the Budget decision to create a new law prohibiting companies from being 'stateless' in terms of the place of their tax residency and the decision not to bring this requirement in until the end of 2014." He later refined the request to the first and final drafts of relevant records, dating from 1 May 2013.

The Department part granted the request on 9 December 2013. It refused to release certain records (or parts of records, as appropriate) under sections 19, 20, 21, 24, 26 and 46 of the FOI Act.

The applicant sought an internal review of this decision on 31 December 2013. In particular, he argued that, as deliberations on Budget 2014 had concluded, the Department could not rely on the deliberative process exemption (section 20 refers). He also noted the lack of records relating to consultations with 14 multinational companies (MNCs) which, according to the released material, were consulted before the Budget decision.

The Department's internal review decision of 22 January 2014 upheld its application of section 20 on the basis that material solely related to the specific decision to prohibit "stateless companies" had been released (other than where such material had been refused under other exemptions) and that other material relating to "separate and distinct policy matters [remained] subject to on-going consideration". Other than saying that the internal review was not concerned with the "overall search process that was carried out", the Department did not address the question of whether further records relating to the consultations with the MNCs existed. Neither did it refer to any attempts it had made to confirm with the applicant that he did not seek a review of the exemptions relied on other than section 20, or deal with the exemptions concerned.

On 8 March 2014, the applicant made an application to this Office for a review of the Department's decision. He said he believed "there are parts that have been wrongly redacted or withheld under section 20(1), 26 and 24(1)". He also sought a review of the assertion that there is only one record relating to the consultations with MNCs (record 56 refers).

The Department released further material in the course of the review, but maintains that sections 20, 26, and 24 are relevant to the remaining details at issue. I have now decided to conclude this review by way of a binding decision. In carrying out this review, I have had regard to the above; to various contacts between this Office and the Department and the applicant in the course of the review; to the records at issue, copies of which were provided to this Office for the purposes of this review; and to the provisions of the FOI Act.

This review is being 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.

Scope of the Review

In March 2015, Ms Anne Lyons, Investigator wrote to the applicant to say that, in light of his application to this Office, I would not consider any records withheld by the Department under sections 19 and 46 of the FOI Act. In August 2015, she again wrote to him to list the records that remained at issue further to the Department's release of material before and during this review. Her letter also listed documents (a cover email in record 6, record 8 in full, and the second attachment to record 12) that were copies of other records under review and would not be considered further. The applicant did not object.

I should clarify that, although the letter detailed above said that parts of record 11 were subject to review, I am now satisfied that the Department released that material to the applicant in the course of this review. I see no need to consider record 11 further.

Accordingly, my review is confined to whether the Department has justified its refusal of the remaining withheld elements of records 1, 2, 4, 5, 6 , 7, 10, 12, 13, 14, 18 and 56, and of records 65 and 68 in full, and whether it has justified its contention that it cannot locate any further records relating to the consultations with MNCs (which is effectively a refusal of such records under section 10(1)(a) of the FOI Act).


Preliminary Matters
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.
Furthermore, the Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of my review, rather than by reference to the facts and circumstances that applied at an earlier date.

It should be noted that procedures recently introduced by my Office generally allow for a public body to make only one submission in support of its refusal of material. However, given that this particular application for review was made before these procedures were introduced, and also given that various issues required clarification, I consider it appropriate for my Office to have engaged with the Department to a greater extent in this case than the procedures generally envisage.

Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI 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, I take the view that neither the definition of a record nor the provisions of section 13 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, I am 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 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Furthermore, because the details at issue are comprised of parts of much longer documents, and having regard to the Department's arguments as to the sensitivity of the details at issue, the analysis of the various issues cannot be as detailed as I would wish.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Finally, the Department has not sought to rely on any other provisions of the FOI Act in the course of this review, other than sections 20, 24 and 26. I see no reason to consider any other exemptions, such as section 21, which I note was also referred to in the Department's initial decision making process.

Section 10(1)(a)

Of the 72 records listed by the Department in the schedule of records provided to the applicant, only one (record 56) concerned the MNC consultations. The applicant contended that further such records should exist.

The Department's internal review should have considered the "overall search process", given that the applicant had specifically questioned the adequacy of those searches. Reasonably enough, the applicant assumed that the Department's position at internal review stage was that it held no further such records. Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable. When a public body asserts that it holds no further records of relevance to a request, it is effectively relying on section 10(1)(a) in refusing to release such records.

Before I go on to deal with the Department's reasons for effectively relying on this provision in relation to further records concerning the MNC consultations, it is necessary to refer to three other records it had, in fact, identified as relevant to the request but the existence of which it had not disclosed to the applicant in its decision making process.

The FOI Act requires me to take steps not to, in essence, prejudice the ability of a public body to appeal any decision I might make to direct release of records. However, for reasons I set out below, reference to the existence of these records in the circumstances of this case cannot be construed as a breach of section 43(3) of the FOI Act. In saying this, it is difficult to see how I could have dealt with the applicant's contention that further records should exist if I had not been able to refer to the records concerned.

The Department referred to the existence of these three records in its response to my Office's initial notification of the acceptance of the review. It said it had decided not to identify these records on the schedule of records it had provided to the applicant, or release them, on the basis that section 26(4) was relevant. Section 26(4)...

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