Release of information (Sep 01) (WITHDRAWN)

Introduction

This standard practice statement provides guidelines for responding to requests for information made under the Official Information Act 1982 (Official Information Act) and the Privacy Act 1993 (Privacy Act). This statement also explains the relationship of these Acts with the Tax Administration Act 1994 (Tax Administration Act) and how the secrecy provisions in the Tax Administration Act and Child Support Act 1991 (Child Support Act) will be applied.

Application

This Standard Practice Statement applies from 11 September 2001

Summary

Requests for information can be made orally or in writing.

Inland Revenue is required to make a decision on a request as soon as reasonably practicable and in any case no later than 20 working days after the receipt of the request. Where Inland Revenue is unable to do so, it will write to the requester extending the timeframe. Charging for the provision of information is permissible under the Official Information Act where considerable departmental resources will be required to satisfy the request.

All information held by Inland Revenue is "official information". Requests by natural persons for information about themselves are governed by the Privacy Act. Under that Act, individuals have a right of access to information about themselves, subject only to the reasons for refusing access stipulated in the Act.

All other requests for information are required to be determined under the Official Information Act.

Part II of the Official Information Act covers requests for information, including personal information by natural persons about natural persons other than themselves.

Part III of the Official Information Act covers requests for internal rules (section 22) or reasons for decisions (section 23).

Part IV of the Official Information Act relates to requests by bodies corporate for information about themselves (section 24).

Under the Official Information Act, there are different reasons for refusing information requests depending on whether Part II, Part III or Part IV applies.

Neither the Privacy Act nor the Official Information Act restricts the effect of the secrecy obligations imposed on Inland Revenue staff by the Tax Administration Act. When a request is to be considered under the Tax Administration Act, Inland Revenue will consider the intent of the Official Information Act and/or the Privacy Act.

For example, there are times when personal information about a requester would not be given to the requester:

• once Inland Revenue has advised that a tax investigation is to commence and disclosure would prejudice the effective conduct of the investigation;
• when the information requested would disclose the identity of a person who has supplied information to Inland Revenue thereby breaching an obligation of confidentiality;
• when the information requested would disclose particular targeting or investigation techniques and selection criteria which, if disclosed, would prejudice Inland Revenue's ability to investigate in the future.

In these cases a request may be refused as the release of this information would be likely to prejudice the maintenance of the law.

Legislation

Official Information Act 1982

The purpose of the Official Information Act is to increase the availability of official information.

Section 5 provides that information shall be made available unless there is good reason for withholding it.

The reasons for refusal to supply official information are contained in sections 6, 7, 9, and 18 of the Official Information Act. For Inland Revenue, the following reasons to withhold information are particularly relevant.

Section 6
Disclosure of the information requested would:

• prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand;
• prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by an international organisation or another government or any agency of such Government;
• prejudice the maintenance of the law including the prevention, investigation and detection of offences;
• endanger the safety of any person;
• damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government economic or financial policies relating to, inter alia, taxation.

Section 9
Withholding of the information requested is necessary to:

• protect the privacy of natural persons;
• avoid unreasonable prejudice to the commercial position of the person who supplied or is the subject of the information;
• protect information which is subject to an obligation of confidence, where disclosure would be likely to prejudice the supply of similar information, which supply is in the public interest;
• avoid prejudice to the substantial economic interests of New Zealand;
• maintain the constitutional conventions which protect, for example, collective and individual ministerial responsibility, the political neutrality of officials and the confidentiality of advice tendered by Ministers and officials;
• maintain the effective conduct of public affairs through the free and frank expression of opinions by or between or to Ministers, or employees of any department in the course of their duty;
• maintain legal professional privilege;
• enable a Minister or any department to carry on, without prejudice or disadvantage, negotiation.

The reasons for refusal contained in section 9 are subject to the public interest. They will not provide good reason to withhold information, where the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

Section 18
The information requested may be withheld if:

• the making available of the information requested would be contrary to the provisions of a specified enactment;
• the information requested is or will soon be publicly available;
• the information requested cannot be made available without substantial collection or research;
• the information requested is not held by the department;
• the request is frivolous or vexatious or that the information requested is trivial;

Section 27
(Reasons for refusal of requests for personal information by bodies corporate)

• disclosure would prejudice the interests protected by section 6(a) to (d), section 7 or section 9(2)(b);
• disclosure would involve the unwarranted disclosure of the affairs of another person or of a deceased person;
• disclosure would breach legal professional privilege;
• the request is frivolous or vexatious or the information requested is trivial.

Section 52 of the Official Information Act states that the Official Information Act does not override a provision in another Act that imposes a prohibition or restriction in relation to the availability of information.

Privacy Act 1993

The purpose of the Privacy Act 1993 is to promote and protect individual privacy.

The Information Privacy Principles contained in section 6 set out the rules for the collection, use, access to and disclosure of information relating to individuals by public and private sector agencies.

Inland Revenue is subject to those Information Privacy Principles. Principle 6 provides that where an agency holds personal information in a form that is readily retrievable, individuals are entitled to have access to information relating to them.

An agency may refuse to disclose information requested in certain circumstances. Reasons for refusal to supply information are contained in sections 27, 28 and 29. The following reasons to withhold information are particularly relevant to Inland Revenue.

Section 27

• disclosure would prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial;
• disclosure would endanger the safety of any individual;

Section 29

• disclosure would involve the unwarranted disclosure of the affairs of another individual or a deceased individual;
• disclosure would breach legal professional privilege;
• the request is frivolous or vexatious, or the information requested is trivial;
• the information requested is not readily retrievable;
• the information requested is not held by the department and the person responding to the request has no grounds for believing that the information is either held by another agency or connected more closely with the functions or activities of another agency.

Section 7 of the Privacy Act states that Information Privacy Principles 6 and 11 do not override a provision in another Act that imposes a prohibition of restriction in relation to the availability of information.

Tax Administration Act 1994

Section 81(1) requires all officers of Inland Revenue to maintain secrecy in respect of all matters relating to the Inland Revenue Acts. It also provides that officers of Inland Revenue shall not communicate any such matters to any person during or after their employment except "for the purpose of carrying into effect" the Inland Revenue Acts or the other Acts listed in this subsection. This exception is referred to as the general exception.

Section 81(4) lists a number of specific instances where the Commissioner may disclose information.

Under section 81(4)(l) the Commissioner may provide information to a person from whom or in relation to whom such information is held or was obtained. The information must be readily available and the Commissioner must consider it reasonable and practicable to release the information.

Child Support Act 1991

Section 240 of the Child Support Act deals with secrecy of child support and other revenue matters. The Child Support Act is an Inland Revenue Act and as such section 240 needs to be read in conjunction with the secrecy provisions in the Tax Administration Act.

Section 240(2) contains communications, which are deemed to be communications of matters made for the purpose of carrying into effect the provisions of the Child Support Act. Under certain circumstances communication of information is allowed to the police, the qualifying custodian, the recipient of spousal maintenance, the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 and the chief executive of the Department for Courts.

Discussion

Information held by Inland Revenue may be requested orally or in writing by any of the following:

• a New Zealand citizen;
• a permanent resident in New Zealand;
• a person who is in New Zealand;
• a body corporate incorporated in New Zealand;
• a body corporate incorporated outside New Zealand which has a place of business in New Zealand.

The nature of the information being requested and the identity of the requester will determine the Act under which the request is to be considered. The request need not refer to the Act.

If the request is made by or on behalf of a natural person for information about that person it will be considered under the Privacy Act. All other requests, including requests for information relating to another person or requests from bodies corporate for information about themselves, will be considered under the Official Information Act.

The provisions in the Official Information Act and Privacy Act do not derogate from the secrecy provisions contained in the Tax Administration Act. If the Tax Administration Act precludes the disclosure, the reason for the refusal must be one of the reasons stipulated in sections 6, 7, 9, 18 or 27 of the Official Information Act or sections 27, 28 or 29 of the Privacy Act.

The Tax Administration Act contains exceptions to the obligation of secrecy. In particular sections 81(1) and 81(4).

Section 81(1)
This exception provides for disclosure where this is considered necessary to carry into effect the Acts referred to in this section This exception will apply whether it is officers of the department or third parties carrying into effect the Acts. The Court of Appeal in Knight v CIR [1991] 2 NZLR 30 has held that the carrying into effect of the Inland Revenue Acts must include their proper implementation or administration. It is not confined to the collection of revenue and therefore careful consideration, on a case by case basis, must be given to all duties and responsibilities of officers under the Inland Revenue Acts.

Section 81 requires a restrictive approach by the Commissioner to releasing taxpayer information to other persons. In practice this will mean the stringent application of the secrecy provision when a request is made for information about another taxpayer's affairs. Section 6 of the Tax Administration Act reinforces the right of taxpayers to have their individual affairs kept confidential.

Section 81(4)
This subsection lists a number of instances where the Commissioner may release information. Most importantly, under paragraph (l) the Commissioner is permitted to provide information in the Commissioner's possession to a person from or on behalf of or in relation to whom that information is held or was obtained, provided that the person making the request is either the person concerned, their legal representative, or their agent authorised in writing (or authorised in such other manner as the Commissioner prescribes).

Section 81(4)(l) also stipulates that the information must be readily available and that the Commissioner must consider it reasonable and practicable to release the information.

If, in order to comply with the request, a substantial amount of work would be involved in locating, extracting and collating the requested information, it may be that the information is not readily available and can be refused in terms of s18(c)(i)of the Official Information Act or s27(1)(c) of the Privacy Act.

Pursuant to s81(4)(l), information about a person will be released upon request to that person unless there are good reasons to withhold that information under either the Official Information Act (for bodies corporate) or the Privacy Act (for individuals). The facts and the surrounding circumstances of each case must be carefully considered.

There are times when personal information would not be given to a taxpayer or an agent. These include the following examples:

• once Inland Revenue has advised that a tax investigation is to commence and disclosure would prejudice the effective conduct of the investigation;
• when the information requested would disclose the identity of a person who has supplied information to Inland Revenue on the basis of confidentiality;
• when the information requested would disclose particular targeting or investigation techniques and selection criteria which, if disclosed, would prejudice Inland Revenue's ability to investigate in the future.

In these cases a request may be refused in terms of section 27(1)(c) of the Privacy Act (for individuals) or section 27(1)(a) of the Official Information Act (for bodies corporate).

Providing reasons for decisions and access to internal rules affecting decisions

Sections 22 and 23 of the Official Information Act provide a right of access to internal rules affecting decisions and to reasons for decisions affecting a person in their personal capacity. Together these sections identify that where persons are affected in their personal capacity by a decision or recommendation of Inland Revenue, they are entitled to know about the applicable rules and policies. They are also entitled to receive adequate information about why the decision or recommendation came to be made.

Compliance with these sections will promote the accountability of Inland Revenue by enabling decision-making processes to be more transparent and understandable to the people they affect.

Where section 81 of the Tax Administration Act applies and secrecy is required, access to information can be refused under section 6(c) of the Official Information Act because disclosure would prejudice the maintenance of the law, namely the proper operation of section 81 of the Tax Administration Act.

Standard Practice

Receiving a request

Requests can be received orally or in writing. However, it may be appropriate for Inland Revenue to ask the requester to submit their request in writing to reduce any opportunity for misunderstandings.

Requests for official information are required to be "specified with due particularity". This means that Inland Revenue must be able to identify the information being sought. If a request is so general in nature that it is impossible to identify the nature of the information sought, it is reasonable for Inland Revenue to ask the requester to be more specific.

The fact that a request is for a large amount of information does not in itself mean that the request lacks due particularity.

In respect of requests for all personal information held about the requester, it is reasonable for Inland Revenue to seek clarification as to whether the requester wishes to be supplied with copies of material that has already passed between the requester and Inland Revenue.

Inland Revenue is required to provide reasonable assistance to persons requesting information. Where the requested information is not held by Inland Revenue but believed to be held by another Government agency or Minister, Inland Revenue is required to transfer the request within 10 working days.

Responding to the request

In all cases information will be released upon request unless there are good reasons to withhold that information under either the Official Information Act or the Privacy Act.

Timeframe

Both the Official Information Act and the Privacy Act place an obligation on Inland Revenue to make a decision as to whether the information requested will be released as soon as practicable, and in any case within 20 working days after the day on which the request is received. Therefore, any request for the release of information will be dealt with as a matter of urgency.

Extension of time

Inland Revenue will write to the requester extending the timeframe if the request involves a large quantity of information and meeting the original time limit would unreasonably interfere with the operations of Inland Revenue or where consultation is necessary in order to make a decision on the request. If the requester is dissatisfied with the extension of time, they can seek a review by the Ombudsman or Privacy Commissioner.

A response to a request made under the Official Information Act or Privacy Act will include:

• a repeat of the original request;
• a reference to the Act the request has been considered under;
• Inland Revenue's decision on the request;
• the reason for refusal where Inland Revenue has refused the request in whole or in part;
• the requester's right to seek an investigation and review by the Ombudsmen, or Privacy Commissioner of the decision, or have the decision reviewed by a review officer who reports directly to the Commissioner of Inland Revenue in case of a refusal.

Charging

The Official Information Act permits charging for the supply of official information. Inland Revenue will consider charging when considerable departmental resources will be required to satisfy the request.

If Inland Revenue intends to charge for providing the information, an interim letter will be issued detailing the proposed charge and whether whole or part payment is required before the information will be released.

In line with State Services Commission guidelines and practice by other government departments, Inland Revenue's policy is not to impose charges on Members of Parliament and parliamentary research units.

Inland Revenue will not charge a natural person for the supply of personal information about that person.

Deletion of information from documents

Where the information requested is contained in a document and there is good reason for withholding some of the information contained in that document, the other information in that document will be made available by making a copy of the document with the necessary deletions clearly identified in the document.

This Standard Practice Statement was signed by me on 11 September 2001

Margaret Cotton
National Manager
Technical Standards