Why does the IDA want lower income taxes?

[Cross posted from Right To Know]

Earlier this year a newspaper report indicated that the IDA was lobbying against higher income taxes claiming that high income tax was making it difficult to attract foreign investment and was hitting job creation.

In August last year we submitted an FOI request looking for the analysis to back up these claims and all records of any lobbying in respect of income tax and social security rates in Ireland.

The IDA said that it continually analyses personal taxation and social security and how it influences FDI in Ireland and pointed to various methods including a 2015 survey by KPMG, a report from the Tax Institute and engagements with stakeholders, clients and staff. Specifically IDA undertook research in 2016 to identify reasons why some companies who considered Ireland chose to go elsewhere. According to the IDA, personal tax was among the reasons why they did not choose Ireland.

However, none of the underlying records were identified or released.

All IDA provided were redacted copies of 2017 pre-budget submissions calling on the government to reduce the top rate of income tax from 52% to below 50% and to set out a road map of income tax reductions up to 2020.

Tax rates are a big public interest issue. Taxes are used to fund public services (including the IDA it must be noted). With lower tax rates there must be an objective analysis of the trade-offs that are being made. While nobody necessarily wants to pay more tax – a public body such as the IDA would be expected to be sensitive to the bigger issues at play when it calls for tax cuts. In particular there must be a clear public benefit based on objective analysis so that the IDA position is substantially more than mere lobbying on behalf of big business.

We believe that the IDA must disclose its tax analysis and identify the interests that are driving it to intervene in the public debate over tax rates. To that end we are not satisfied that so much information has been withheld and have now filed an application with the Information Commissioner to review the IDA’s decision to keep the bulk of its information supporting its position on lower taxes from public scrutiny.

The Information Commissioner has invited us to make a submission in early January and we expect him to make a decision shortly after that.

We will keep you posted.

Here is IDA’s response:

When is a record held under the Freedom of Information Act?

This post is cross posted from my information rights blog.

When is a record held for the purposes of the Freedom of Information Acts 1998 and 2003? That was the question the High Court had to answer in a recent decision of O’Neill J in The Minster for Health -v- The Information Commissioner [2014] IEHC 231.

In his interpretation of which records are held for the purposes of the FOIA O’Neill J adopted a novel definition:

41. In my opinion, for a document to be “held” within the meaning of s. 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body, in connection with the functions or business of that public body and the document must not be subject to any prior legal prohibition affecting it’s disclosure.

The issue arose in the context of a non-statutory inquiry into practices and procedures at Our Lady of Lourdes Hospital, Drogheda during the period from 1964 to 1995 to protect patients from sexual abuse and to deal with allegations of sexual abuse against Mr Michael Shine. Non-statutory inquiries such as this are often used as a way to scope more formal statutory inquiries under, for example, the Commissions of Investigation Act 2004.

This decision is important since it reveals flaws, at least in this instance, in the way non-statutory inquiries are constituted and a lack of certainty in relation to who controls the documents generated by them. From an information rights point of view the Court adopted a surprisingly restrictive interpretation of the meaning of the word “held” for the purposes of the FOIA arguably placing a large category of records permanently outside the scope of FOI.

The inquiry, known as the Drogheda Review, was conducted by retired High Court judge Thomas C Smyth who was appointed by the Minister for Health on 18 December 2009. In the course of the inquiry Mr Smyth commissioned transcripts of interviews he conducted with a number of individuals. Upon completion of his work Mr Smyth returned several boxes of documents to the Department of Health, including six sealed boxes of documents containing the transcripts of interviews conducted during the inquiry.

These boxes were accompanied by written instructions from Mr Smyth that they should not be opened or disclosed except under a court order on the basis that the information was provided in confidence to the inquiry, Mr Smyth being satisfied that many of the individuals would not have participated in the absence of such an assurance.

In May 2012 one of the individuals who was interviewed by Mr Smyth made a request under FOIA for access to the transcript of his interview.

His request was refused on the basis that the document in question was not under the control of the Department which merely held them on behalf of Mr Smyth for safe keeping. The matter was referred to the Information Commissioner who disagreed and found that the Department held the document and ordered it to deal with the individual’s request.

Under section 6(1) FOIA the public has a right of access to any record held by a public body. Bearing in mind that public bodies may not possess all relevant records, section 2(5) explicitly states that documents controlled by a public body are held and further according to section 6(9) where a person performs a contract for service for a public body records relevant to the contract are deemed to be held by the public body with a contractual obligation implied into the contract obliging the contractor to provide the records to the public body if requested.

While the Information Commissioner argued that mere possession was sufficient to trigger the act – O Neill J adopted a rather different and somewhat novel approach to the issue which depended on the nature of Mr Smyth’s role as independent reviewer and the legal basis for his appointment.

O Neill J emphasised that Mr Smyth was entirely independent in his conduct of the inquiry and despite being paid a fee and performing tasks assigned to him he could not be said to be performing a contract for services since if he was then the FOIA would apply to the inquiry documents, a situation wholly inconsistent with his independence:

49. It is easy to say what the relationship between Mr. Justice Smyth and the Department was not, and in that respect, I am quite satisfied that whilst in a general sense, it could be said that Mr. Justice Smyth was providing a service in consideration of the payment of an agreed fee, the provision of this service cannot be considered as falling within the terms of s. 6(9) because the application of s. 6(9) in the circumstances would be wholly inconsistent with the independent nature of the function discharged by Mr. Justice Smyth.

Despite this statement the Court did not reach a conclusion on the legal basis for Mr Smyth’s appointment. Although it was conceded he was neither an employee nor an agent of the Minister nor was he acting as an office-holder he could still not be considered a contractor under a contract for services.

The decision and its rationale represent a radical departure from what has, up to now, been a liberal definition of which records are held for the purposes of FOI consistent with a general presumption in favour of access to records.

Surprisingly although much was made of analogies with Irish and English approaches to access to documents through discovery, UK  information law jurisprudence was not canvassed in the judgment. This is all the more surprising given a similar set of facts arose in the case of Digby-Cameron -v- Information Commissioner (EA/2008/10) which was decided by the Information Tribunal and concerned a request by a father to access the transcript of a Coroner’s hearing into the death of his son.

The main UK case is British Union for the Abolition of Vivisection -v- The University of Newcastle [2011] UKUT 185 (ACC) where the Upper Tribunal endorsed a common sense approach to the definition of “held” proposed by the First Tier Tribunal at paragraph 23:

 ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.”

Under UK law where a record is in the possession of a public body to any extent for its purposes it is subject to the FOIA even if it is holding it for someone else. Records will only fall outside FOI where they are held solely for someone else and for no purpose connected with a public body. The UK Information Commissioner has published some useful guidance and analysis.

It now seems that the Irish Courts have diverged from the United Kingdom’s “common sense” and “non technical” approach to the definition of “held” under FOI and at least in the case of non-statutory inquiries have adopted a restrictive inverted approach to the definition which may need to be resolved at some future date by the Supreme Court.

Commissioner rules on 1998 Cabinet level documents

Back in December the Information Commissioner issued a decision in my favour in relation to records pertaining to industrial grants from 1998. The full decision has been published, and it is the first decision of the Commissioner pertaining to Section 19 of the FOI Act – the part that relates to Cabinet documents, and their becoming available after 10 years has passed.

The issue at hand was whether the Department of the Taoiseach (and by extension the Department of Jobs, Enterprise and Innovation) were correct in redacting the names of certain companies that had received industrial grants in 1998. I had an issue with this. When I put the request in back in 2010, it was already 12 years since the events had taken place. Section 26 and Section 27 (Commercial Sensitivity) were cited by the DJEI as reasons not to release. Then late in the process (in 2013) they withdrew the arguments under those sections and instead argued under Section 31 (Financial and Economic Interests of the State and of Public Bodies).

Per the Commissioner, the Department argued:

The basis of the DJEI’s claims for exemption under section 31(1)(a) and (c) is that the State operates in a highly competitive international environment in seeking to attract and maintain direct foreign investment. According to the DJEI, no other competing jurisdiction releases the following type of information relating to industrial grant or other similar investment incentive schemes: the name of the company featured on the Cabinet record; the actual monetary value of the grants, whether employment, capital, or training grants; and the grant cost per job. The DJEI argues in essence that the release of such information would weaken Ireland’s competitive position in making offers relating to industrial development and encourage forum shopping by business operators. The DJEI places great emphasis on the “‘mobile nature’ of industry and its ability to relocate to another jurisdiction at the first sign of perceived breaches of confidence by the State Department with responsibility for industrial development”. It describes the redactions it proposes as “minimal” and “particularly relevant to the issue of protecting Ireland’s ‘bidding strategy’ in a fiercely competitive international playing field”.

They also argued closely to a Queensland FOI case, but the Commissioner gave that short shrift:

This is not Queensland. The records at issue are now over 15 years old. They were created during the heyday of the so-called “Celtic Tiger”. The Irish and world economies have drastically changed since then. I do not doubt that competition for direct foreign investment is as fierce as ever, if not more so. However, industrial grant aid is just one of many factors that determines a multinational company’s foreign investment decisions. It is my understanding, for instance, that Ireland’s low corporate taxes are considered to be a more important factor, as indicated by IDA spokesman Brendan Halpin in any article in The New York Times, dated 3 March 2005, entitled “Dublin withdraws promise of aid to Intel”. I simply do not accept that industrial grant information dating from over 15 years ago is of any relevance in today’s economy.

The companies originally contacted by Mr. Stokes did not object to the release of the information concerned. The Director of the parent company who made submissions in June 2013 indicated that only information of a more detailed nature than what is at issue in this case would be of concern to his company. Thus, the question of a breach of confidence is also not relevant.

I am not satisfied that access to the records concerned could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy. I am also not satisfied that access to the records concerned could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I find that sections 31(1)(a) and (c) do not apply. In the circumstances, it is not necessary for me to address the matter of the public interest under section 31(3) of the FOI Act.

This is a good decision and should go some way towards obtaining more Cabinet related documents from the late 1990s and early 2000s. The documents in question have now been released to me in full.