Recording Inland Revenue interviews

This item will also appear in Tax Information Bulletin (TIB) Vol 23, No 5 (June 2012).

Introduction

1. For the purpose of administering the Inland Revenue Acts¹ it is often necessary for Inland Revenue officers to conduct interviews with taxpayers and others. The purpose of an interview will range from general information exchanges to resolve queries to formal interviews where there is the potential for litigation.
2. Interviewees will generally be asked to attend an interview on a voluntary basis, although section 19 of the Tax Administration Act 1994 gives the Commissioner the authority to require any person to attend an interview. Compulsory interviews conducted under section 19 are held when it is considered appropriate by the Commissioner to obtain information from taxpayers or other parties. As a matter of course, all section 19 interviews will be recorded, either by audio or video technology.
3. As statements made by taxpayers and others during an interview may be admissible as evidence in litigation it is important that all interviews are carried out in a fair and open manner and in a way that will not make the statement inadmissible. It is also important that interviews are clearly recorded and that the questions and answers are unambiguous.
4. Not all interviews conducted by Inland Revenue will be electronically recorded. In many cases hand-written notes will be sufficient. However, Inland Revenue does record interviews using modern recording technology and this will increasingly become our usual practice in an investigative interview.
5. This Standard Practice Statement (SPS) sets out Inland Revenue's standard practice for using technology to record interviews where it is considered to be necessary or appropriate to make an electronic recording of an interview.
6. Unless specified otherwise, all legislative references in this SPS refer to the Tax Administration Act 1994 ("the TAA").

Application

7. This SPS applies from 19 April 2012. It replaces SPS 10/01 Recording Inland Revenue Interviews which was published June 2010 and also produced in in Tax Information Bulletin Vol 22, No 7 (August 2010).
8. It does not apply to independent contractors conducting interviews on behalf of Inland Revenue, such as a research company contracted to carry out a customer survey, or an external solicitor contracted to carry out a Child Support Review.

Legislation

9. Section 19 of the TAA provides:
   
   19 Inquiry by Commissioner
   1. The Commissioner may, for the purpose of obtaining any information with respect to the liability of any person for any tax or duty under any of the Inland Revenue Acts or any other information required for the purposes of the administration or enforcement of any of those Acts or for the purpose of carrying out any other function lawfully conferred on the Commissioner, by notice, require any person to attend and give evidence before the Commissioner or before any officer of the Department authorised by the Commissioner in that behalf, and to produce all books and documents in the custody or under the control of that person which contain or which the Commissioner or the authorised officer considers likely to contain any such information.
   2. The Commissioner may require any such evidence to be given on oath and either orally or in writing, and for that purpose the Commissioner or the authorised officer may administer an oath.
   3. No person summoned or examined under this section shall be excused from answering any question on the ground that the answer may incriminate the person or render the person liable to any penalty or forfeiture.
   4. No statement made by any such person in answer to any question put to the person shall in criminal proceedings be admissible against the person, except upon a charge of perjury against the person in respect of the person's testimony upon that examination.
   5. The provisions of the Crimes Act 1961 which relate to perjury are applicable to any inquiry under this section.
   6. A person required to attend before the Commissioner or an authorised officer may receive out of money appropriated by Parliament for the purpose such sum on account of travelling expenses and loss of time as the Commissioner thinks reasonable and orders accordingly.

10. Principle 6 of the Privacy Act 1993 provides:

11. Principle 6 Access to personal information

    1. Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled-
       1. To obtain from the agency confirmation of whether or not the agency holds such personal information; and
       2. To have access to that information.
    2. Where, in accordance with subclause (1)(b) of this principle, an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information.
    3. The application of this principle is subject to the provisions of Parts 4 and 5 of this Act.

11. Section 27 of the Privacy Act 1993 provides for exceptions to Principle 6, one of which may sometimes apply to Inland Revenue responsibilities for administering the Revenue Acts:
    1. An agency may refuse to disclose any information requested pursuant to principle 6 if the disclosure of the information would be likely-
       ...
       3. To prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial;... .

Standard Practice

12. The electronic recording of interviews either in audio or video format is common practice by regulatory and investigative agencies. There are advantages for both parties in electronically recording an interview, such as:
    • An interview which is electronically recorded will take less time than one in which the notes are taken by hand;
    • An electronic recording provides a more accurate record of what was said at the interview and by whom;
    • Those parties at the interview are able to concentrate fully on the interview instead of there being delays while taking full written notes;
    • An electronic copy of the interview will, in most cases, be made available to the interviewee shortly after the interview in concluded.
13. Whilst in many instances it will not be necessary to electronically record an interview it is increasingly becoming Inland Revenue's usual practice to record interviews where:
    • The issues to which the interview relates are complex or contentious;
    • There are inconsistencies in evidence gathered or statements made to date;
    • There are language issues necessitating the use of an interpreter;
    • The relationship between the interviewee and Inland Revenue has deteriorated;
    • Where the subject matter of the interview will potentially be used in litigation.
14. The above are examples only and a desire by Inland Revenue staff to record an interview is not limited to those situations. Further, other than in a section 19 interview, taxpayers who are not comfortable that an interview is to be recorded may decline to attend the interview or may decide to discontinue an interview. So far as is possible, where Inland Revenue intends to record an interview, the taxpayer will be advised of that in advance of the interview.
15. An interviewee may request that a voluntary interview be recorded. Such requests should be made before the interview so as to allow sufficient time to arrange recording equipment.
16. Generally, the interviewee will be provided with a copy of the interview recording at the conclusion of the interview, or as soon as practicable afterward.
17. The purpose of recording an interview is to:
    • Keep the time required to conduct the interview to a minimum;
    • Ensure that there is an accurate and impartial record of the questions asked and the responses given and the conduct of the parties at the interview.
18. Aside from a section 19 interview, attendance at and participation in interviews is voluntary. However, a decision about whether or not to record the interview will be made having regard to the factors listed above. If the interviewee does not agree to the interview being recorded the interviewer will decide whether to cancel or terminate the interview, or to proceed on some alternate basis, such as using hand-written notes.

Preliminary matters

19. Compulsory interviews under section 19 will always be electronically recorded, using audio or video recording technology. The interviewee's consent is not required for electronically recording section 19 interviews.
20. Other than a section 19 interview, if Inland Revenue intends to electronically record an interview the interviewee will usually be advised of that intention when the interview is arranged.
21. If a decision about electronically recording an interview subsequently changes, the interviewee is to be advised of that decision as soon as practicable before the interview starts.
22. Where an interviewee is attending an interview voluntarily the interview will only be electronically recorded with the interviewee's consent and co-operation. If the interviewee declines to consent to recording of a voluntary interview, Inland Revenue will respect that decision. There will be no secret recording of interviews.

The recording process 

23. There are two ways in which an interview may be recorded - either in handwriting (which may later be transcribed into a more formal memorandum of the interview), or by electronic means, using either audio or video recording technology.
24. As has been noted, in many situations it is preferable to electronically record interviews rather than using hand-written notes. Video recording is not regularly used but may be used when it is appropriate, such as when the interview is likely to be used evidentially.
25. Hand-written notes may be taken even when an interview is being recorded electronically.

The interview

26. After the formal introduction to the interview, the interviewer will ask the interviewee to acknowledge that the interview is being electronically recorded (and in the case of a voluntary interview, with the consent of the interviewee).
27. As the interview may be admitted in evidence, it is important that everyone involved in the interview speaks clearly and slowly.
28. If more than one interviewer is asking questions, they will need to identify themselves for purposes of transcription.

Copies

29. The purpose of an interview is to obtain information to assist in fulfilling the Commissioner's duties. For this reason copies of interviews are kept for reference and for use in potential litigation.
30. Under Principle 6 of Privacy Act 1993² a person is entitled to ask for a copy of any material that relates to them held by, for example, a government agency or an employer.
31. Hand-written interview notes: If an interview is recorded in writing, the statement will be read back to the interviewee, or the interviewee should be asked to read it. The interviewee will be asked to initial each page except the last, which should be signed with the interviewee's full name. If the handwriting is easily legible, it may not be necessary to have the record typed. If requested, the interviewer, in most cases, will give the interviewee a copy of the statement immediately. If copying facilities are not immediately available, a copy may be posted to the interviewee.
32. Digitally recorded interviews: If a digital recording system is used, the original recording on the hard drive of a laptop computer or hand-held recorder cannot be sealed but will be moved to a permanent and secure storage repository. The technology used by Inland Revenue creates tamper proof recordings and these are transferred to permanent storage under strict controls to ensure future security of related records. The interviewee must be told this. In such cases the interviewer should immediately make copies to CD or DVD (depending on the technology available). One copy is to be sealed in the interviewee's presence. The other copy will become an Inland Revenue file copy.
33. Copy of the interview record to the interviewee: Inland Revenue will, in most cases, give the interviewee a copy of a recorded interview. However, in some cases there may be reason to suspect that giving an interviewee a copy may prejudice the maintenance of the law, which in Inland Revenue's case means the administration of the Inland Revenue Acts.
34. In cases such as these, the Privacy Act 1993 and the Official Information Act 1982 allow the agency to withhold copies until the investigation has been completed.
35. Where it is decided not to provide a copy immediately, an interviewee will be told of the decision to withhold that copy, and that one will be supplied at the conclusion of the investigation. The interviewee will be advised of their right under section 67 of the Privacy Act 1993 to seek an investigation and review by the Privacy Commissioner of the Commissioner's decision to withhold the copy.

This Standard Practice Statement is signed on 19 April 2012.

Rob Wells
LTS Manager, Technical Standards
Legal and Technical Services

1: As set out in the Schedule to the Tax Administration Act 1994.

2: Privacy Act 1993. There is a similar provision in section 5 of the Official Information Act 1982 (the "Principle of Availability").