Gary O'Shea v The Information Commissioner & Anor

This decision relates to an appeal brought under section 57 of the Freedom of Information Act 2000 (“the FOIA”). The appeal is against the decision of theInformation Commissioner (“the Commissioner”) contained in a Decision Notice (“DN”) dated 14 March 2023 (reference IC-208169—P5H2), which is a matter of public record.

Full details of the background to this appeal, the Appellant’s request for information and the Commissioner’s decision are set out in the DN. In essence the appeal concerns a request for:

“The number of individuals who have over (or equal to) £1m in ISAs, broken down by: A geographical spread (region); Age; Gender profile;

The largest ISA”. (“the withheld information”).

HMRC responded on 17 November 2021 and confirmed that there were around 2,000 ISAs which had over (or equal to) £1m. In terms of a breakdown of the geographical region, age, and gender of account holders, HMRC stated that it considered section 12(1) of the FOIA to apply, as compliance with the request would exceed the appropriate cost limit. In relation to the last part of the request for the largest ISA, HMRC stated that the information was exempt under section 44(1) of the FOIA as the information was prohibited from disclosure under section 23(1) of the Commissioners for Revenue and Customs Act 2005 (CRCA).

On 14 December 2021 the Appellant requested an internal review specifically in relation to the last part of the request for the highest value ISA. HMRC provided the outcome of its internal review on 17 January 2022 and upheld its position that section 44 of the FOIA applied to this part of the request.

On 20 December 2022 the Appellant wrote to HMRC and asked whether its position had changed in relation to the request for “the size of the country’s largest ISA”. HMRC responded on 20 December 2022 and confirmed that its position remained unchanged from its internal review dated 17 January 2022.

The only question to be determined by the Commissioner was whether HMRC was entitled to rely on section 44 of the FOIA in respect of the final part of the Appellant’s request relating to ‘the largest ISA.’

The Commissioner concluded in the DN that HMRC was entitled to rely on section 44 of FOI and set out his reasons at Paragraphs 8 to 18 of the DN. The Appellant served his Grounds of Appeal on 15 March 2023. HMRC were joined as Second Respondent on 17 April 2023 and made written submissions to the Tribunal.

Section 44 of the FOIA is an ‘absolute’ exemption, which means that the public interest test in section 2 of the FOIA does not apply. Section 44 provides that information is exempt information if its disclosure (otherwise than under the FOIA) by the public authority holding it is prohibited by or under any enactment.

Section 18 of the CRCA provides:

“18 Confidentiality

(1)

Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.

(4)

In this section— … (c) a reference to a function of the Revenue and Customs is a reference to a function of— (i) the Commissioners, or (ii) an officer of Revenue and Customs …”

Section 23 of the CRCA provides:

“23 Freedom of information

(1)

Revenue and customs information relating to a person, the disclosure of which is prohibited by section 18(1), is exempt information by virtue of section 44(1)(a) of the Freedom of Information Act 2000 (prohibitions on disclosure) if its disclosure—

(a)

would specify the identity of the person to whom the information relates, or (b) would enable the identity of such a person to be deduced.

(1A) Subsections (2) and (3) of section 18 are to be disregarded in determining for the purposes of subsection (1) of this section whether the disclosure of revenue and customs information relating to a person is prohibited by subsection (1) of that section.

(2)

Except as specified in subsection (1), information the disclosure of which is prohibited by section 18(1) is not exempt information for the purposes of section 44(1)(a) of the Freedom of Information Act 2000.

(3)

In subsection (1) ‘revenue and customs information relating to a person’ has the same meaning as in section 19.”

“Revenue and customs information” is defined in section 19(2) of the CRCA as: “…information about, acquired as a result of, or held in connection with the exercise of a function of the Revenue and Customs (within the meaning given by section 18(4)(c)) in respect of the person; but it does not include information about internal administrative arrangements of Her Majesty's Revenue and Customs (whether relating to Commissioners, officers or others).”

There is no dispute that the value of the largest ISA is information relating to a person, namely the owner of the ISA, and it is information which is held by HMRC in connection with its revenue function. The sole issue in contention is whether the disclosure of this information would enable identification of that person.

The Appellant indicates that he is not seeking any biographical or geographical information beyond the figure itself (of the largest ISA), and his intention was not to unmask anyone, but merely to know the pot value.

FOIA is intention blind, so the intention of the Appellant is not a relevant consideration. Neither is the Appellant’s comparisons with other types of information which are in the public domain, for example the National Lottery’s publication of the largest jackpot. These factors are not relevant to a consideration of specific statutory prohibitions on disclosure referred to in the exemption in section 44 of the FOIA and the constraints that they place on public authorities to disclose information in response to information requests.

HMRC is under a statutory duty to comply with the requirement of confidentiality under section 23 of the CRCA, which is an Act of Parliament. The Tribunal agrees with HMRC’s analysis of the interaction between that statutory duty and the rights of information requesters under the FOIA: It is not necessary for HMRC to demonstrate that an information requester or any other person would be in a position to identify a person to whom requested information relates in order to withhold that information in reliance on section 23 of the CRCA. It is merely necessary to show that a person (a legal entity)would be in a position to identify the person to whom the requested information relates. This would also include self-identification.

The Appellant asserts that it is wholly improbable that disclosing the requested information (to the world at large) would lead to the present-day identification of the largest ISA holder to anyone (our emphasis). The Appellant also speculates that the largest ISA pots are likely to be similar in amount, which must reduce the risk of self-identification by the holder of the largest ISA and the risk of identification by any other person.

Having viewed the requested information, the Tribunal is satisfied that in this case HMRC has appropriately assessed the risk of identification for the purpose of compliance with HMRC’s duties under section 23(1)(a) of the CRCA. This also means that the exemption in section 44 of the FOIA is engaged by virtue of the explicit provisions of section 23(1) of the CRCA.

In all the circumstances and for the above reasons the Tribunal unanimously find that the Appellant has failed to identify any error of law or error in the exercise of discretion in the Commissioner’s DN and we dismiss this appeal.