Mr Ken Foxe, Right to Know and Office of the Revenue Commissioners [2024] IEIC 144024 (18 November 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

Whether Revenue was justified in redacting certain information from three records on the ground that the redacted information fell outside the scope of the applicant-�s request for records referring or relating to the possibility of the MV Shingle being sunk off the coast of Co. Mayo for diving use

18 November 2024

Background

In a request dated 29 September 2023, the applicant sought copies of any records held referring or relating to the possibility of the MV Shingle being sunk off the coast of Co. Mayo for diving use.

On 27 October 2023, Revenue issued its decision in two parts. In the first part, the Accountants General and Strategic Planning Division (-�AGSPD-�) granted partial access to 22 records with redacted under section 37(1) of the FOI Act, which is concerned with the protection of third-party personal information, with one record being refused as a duplicate record. In the second part, the Information, Communications, Technology and Logistics Division (ICTL) granted partial access to three records, with certain information redacted under section 37(1).

On 27 October 2023, the applicant sought an internal review of Revenue-�s decision. Revenue issued its internal review decision in two parts. AGSPD affirmed the original decision made by that division. ICTL varied its original decision. Regarding the three records with information withheld in part, it said it decided to provide additional information. It noted that -�while some of this information falls outside the scope of [the request]-�, it has decided to release the information as it is already in the public domain and provides a basis to the events leading up to the request. On 21 November 2023, the applicant applied to this Office for a review of Revenue-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In doing so, I have had regard to the correspondence exchanged between the parties as referenced above and during the review, and to the correspondence between this Office and both parties on the matter. I have also considered the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, Revenue release all of the relevant AGSPD records. With regard to the three records identified by ICTL, it subsequently released additional information to the applicant by email on 25 September 2024. It confirmed that it was no longer relying on any exemptions under the FOI Act to withhold the three records within the scope of the request and that the remaining redactions comprised information that falls outside the scope of the applicant-�s request.

Accordingly, this review is concerned solely with whether Revenue was justified in refusing to release certain information from the three ICTL records on the basis that it falls outside the scope of the FOI request.

Analysis and Findings

Revenue-�s position is that the applicant sought records referring or relating to the possibility of the MV Shingle being sunk off the coast of Co. Mayo for diving use and that the information redacted from the three records at issue does not refer or relate to that matter.

In the case of E.H. and the Information Commissioner (1999 No. 96 MCA ), the High Court considered the meaning of the term "relate to personal information" in the context of whether certain records could be deemed to relate to personal information about an identifiable individual. In that case, O'Neill J. stated as follows:

"In my view the test to be applied to determine whether or not a record "relates to" is that which is postulated by Mr. O'Donnell at paragraph (a) above namely "whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question"

While I fully accept that the term "relates to" was considered by the Court in the context of whether records relate to personal information, it nevertheless seems to me that the judgment outlines an approach to the interpretation of the term that I can usefully adopt in this case.

The three records at issue are Revenue records containing updates at various times on the disposal of the MV Shingle. All three records contain details of a proposal for the sinking of the vessel off the coast of Co. Mayo. Record 1 describes the proposal as a project to sink the vessel to promote diving tourism. Record 2 outlines, in essence, progress to date on that project. Record 3 outlines, among other things planned next steps to move the project along. While I accept that the information redacted from the records does not specifically refer to the possibility of the vessel being sunk, I am satisfied that it is relevant background information relating to the proposal under consideration and that there is a sufficiently substantial link between the redacted information and the proposal itself for that information to be deemed to come within the scope of the request.

In my view, Revenue-�s decision to redact the information at issue represents an unduly narrow interpretation of the request. I am satisfied that the entirety of all three records fall within the scope of the request. In circumstances where the role of this Office is to review decisions taken by FOI bodies on FOI requests and not to effectively act as a first-instance decision-maker, I consider that the most appropriate course of action to take in this case is to annul Revenue-�s decision with regard to the redactions made to the three records. The effect of this is that Revenue must consider the entirety of the three records for release and make a new first-instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with Revenue-�s fresh decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Revenue-�s decision to redact certain information form three records on the ground that the redacted information does not fall within the scope of the applicant-�s request. I direct Revenue to conduct a fresh decision-making process on the redacted information in accordance with the provisions of the FOI Act.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr Ken Foxe, Right to Know and Office of the Revenue Commissioners [2024] IEIC 144024 (18 November 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/144024.html Cite as: [2024] IEIC 144024

Irish Information Commissioner's Decisions

Mr Ken Foxe, Right to Know and Office of the Revenue Commissioners

Background

Scope of Review

Analysis and Findings

Decision

Right of Appeal