Mr. X and The Department of Finance

JudgeElizabeth Dolan Senior Investigator
Judgment Date23 August 2016
Case OutcomeThe Senior Investigator affirmed the Department's decision to refuse access to the records at issue under section 35(1)(b) of the Act. She found that release of the records would result in breach of a duty of confidence owed to the companies referred to in the records.
CourtInformation Commission
Record Number150419
RespondentDepartment of Finance
Case Number: 150419
Whether the Department was justified in refusing to release three 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 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
Background

On 30 October 2013, the applicant made an FOI request to the Department 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". On 9 December 2013, the Department part granted the request. The applicant sought an internal review of this decision. On 22 January 2014, the Department upheld its original decision. On 8 March 2014, the applicant applied to this Office for a review of the Department's decision. In the course of that review (reference number 140057), the Department notified this Office of the existence of three further records that it had identified as being relevant to the request. This Office informed the applicant about these records. In his decision of 19 November 2015, the Commissioner directed the Department to conduct a fresh decision making process in relation to the three further records it had identified.

On 2 September 2015, the applicant made a request (prior to the Commissioner's decision in case 140057 issuing) to the Department for access to the same three further records. On 5 October 2015, the Department refused the request on the basis that the records are exempt under 35(1)(a) of the Act. The applicant sought an internal review of this decision. On 10 November 2015, the Department upheld its original decision. It also refused access to the three records under section 40(1)(a) of the Act. On 28 November 2015, the applicant applied to this Office for a review of the Department's decision.

In its submissions to this Office, the Department argued that the records were also exempt under section 35(1)(b) of the Act. This Office informed the applicant of the Department's submissions in relation to section 35(1)(b). In response, the applicant provided submissions arguing that section 35(1)(b) did not apply to the three records.

At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this. In conducting my review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the records at issue and to the provisions of the FOI Act.

Scope of the review

The scope of this review is confined to whether the Department was justified in refusing to release records 1-3 on the basis that they are exempt under section 35(1)(a) and/or section 35(1)(b) and/or section 40(1)(a) of the FOI Act.

Preliminary Matters

Section 13(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).

I should explain the approach to granting access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the 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, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Finally, the Courts have recognised that a review decision by this Office is by way of a hearing de novoin 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.

Analysis and Findings
The Records

- Record 1 contains a list of certain Multi-National Companies (MNCs), and information about them in the context of meetings to be scheduled;
- Record 2 contains a note of a conference call between officials of the Department, representatives of a named MNC and third parties;
- Records 3 also contains a note of a conference call between officials of the Department, representatives of a named MNC and third parties.

It is fair to say that the content of the three records is related to the content of record 56 on which the Commissioner made findings in case 140057.

Section 35(1) - information obtained in confidence

The Department has refused to release records 1-3 on the basis that they are exempt under section 35(1)(a) and/or section 35(1)(b) of the Act. Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. In his decision in case 140057 concerning similar records held by the Department, the Commissioner set out in some detail his approach to section 26(1) of the FOI Act 1997, as amended. The...

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