Dublin Town takes legal action over member levy data

Business promotion organisation Dublin Town has taken a High Court action to block the release of information on how many of its number have paid membership levies.

The contested data – successfully pursued through the Freedom of Information Act by the chief executive of the Restaurant Association of Ireland (RAI) – also includes the extent of legal proceedings issued against those who did not pay the mandatory charge.

Dublin Town was established just over 10 years ago and is responsible for various promotional events as well as supplementing Dublin City Council’s cleaning programmes. Its core task is to improve the shopping experience in the city centre.

It changed its name from the former Dublin City Business Improvement District.

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While renewed in a ballot of members last year, many business owners feel the mandatory levy payment, based on the equivalent of 5 per cent of annual rates payments, is an unjustifiable form of double taxation, a view long disputed by Dublin Town.

The information in question was sought a year ago by Adrian Cummins of the RAI, a critic of the company. He wanted transparency on the number of businesses who had not paid the levy between 2008 and 2016 and the resulting level of legal enforcement actions.

“I had sought it in the interest of the public and because it’s dealing with a tax and how it’s levied on businesses, some of which are our members,” he said.

“I can’t understand why this information isn’t being put out into the public domain if it’s a tax on business.”

Legal cases

The initial information request went through Dublin City Council which administers Dublin Town levies. In a statement it said would not comment as the matter was before the High Court. Dublin Town did not immediately responded to requests for comment.

In correspondence with members of the board of Dublin Town, chief executive Richard Guiney said the council "considered details of the accounts in arrears and details of legal cases taken on behalf of Dublin Town to be commercially sensitive and therefore exempt".

He added: “We are of the view that if non-payment by some is publicised that it may encourage others not to pay either.”

Mr Guiney said it was not commercially viable to take cases involving “small amounts” to court, but that overall payment is in the region of 90 to 95 per cent.

“There is a significant number of accounts that show small amounts owing. It is our view that this is likely to be used to suggest a lower level of compliance than there actually is.”

The local authority’s decision to refuse the data was overturned by the Office of the Information Commissioner (OIC) which arbitrates on disagreements.

However, that decision, reached last December, is now the subject of the High Court appeal with an initial court appearance scheduled for next Monday.

Such a High Court appeal is provided for in the Freedom of Information Act by any person affected by a decision made by the commissioner. Requests for appeal usually relate to a point of law.

Refusal to pay

The OIC, in a letter to Mr Cummins, noted the position of Dublin City Council and Dublin Town as that “releasing the information would be likely to result in a higher number of businesses refusing to pay their levy and that this would therefore have a negative financial impact on the Company”.

The commissioner rejected this argument and ruled that the public interest would be “better served” by granting access to the records.

Mr Guiney, in his correspondence with board members, said the OIC determination was inadequately considered and “flawed” and that legal opinion obtained by Dublin Town found it to be “unsatisfactory”.

“Our affidavit will show the fundamental flaws in the OIC reasoning,” he wrote. “When they realise that they have erred significantly and that they have not done their homework they may wish to revisit their determination.”

Despite some grievances over businesses having to pay both commercial rates and a business improvement district levy, 54 per cent of businesses voted to keep Dublin Town in operation for a further five years in a statutory vote last July.