Administrative Appeals Tribunal of Australia|1997-04-04

Collie and Deputy Commissioner of Taxation [1997] AATA 713 (4 April 1997)

FREEDOM OF INFORMATION - whether documents relevant to request - whether applicant's motives for seeking access relevant - whether must be able to identify person to whom information relates in considering S.16(2) ITA Act - meaning of "respecting the affairs" - role of DPP in relation to matters under consideration by ATO - whether its role changes - whether change of consequence in consideration of exemption under section 42 - decision set aside.

Freedom of Information Act 1982 - Ss 4, 11, 15, 16, 18, 26A, 27, 27A, 34, 35, 36, 37, 38, 40, 41, 42, 56, 61

Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122

Grofam Pty Ltd v Australian and New Zealand Banking Group Ltd (1993) 116 ALR 535

Holland v Jones [1917] HCA 26; (1917) 23 CLR 149

Johns v Connor and Others [1992] FCA 193; (1992) 107 ALR 465

Murtagh and Federal Commissioner of Taxation (1984) 84 ATC 4,516

Re Booker and Department of Social Security (unreported, Decision No.6189, 13 September, 1990)

Re Kingston Thoroughbred Horse Stud and Australian Taxation Office (1986) 86 ATC 2,030

Re Mann and Australian Taxation Office (1985) 3 AAR 2760

Re Mr "Z" and Australian Taxation Office (1984) 6 ALD 673

Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683

Waterford v Commonwealth [1987] HCA 25; (1987) 71 ALR 673

Webb v Deputy Commissioner of Taxation (1993) 26 ATR 411

sets aside the decision which the respondent is deemed to have been made under the Freedom of Information Act 1982;

(1) the applicant is entitled to access to all documents described in Schedule B to the affidavit of Mr Graeme Manser sworn on 7 March, 1997 other than:

(a) the parts of documents in relation to which further consideration has been adjourned (see paragraph 3 below); and

(b) the following documents, or parts of documents:

A. Under section 38:

. Audit File Part I - copy of facsimile from the ATO in Melbourne to the ATO in Brisbane on 24 June, 1988 and an office minute dated 24 June, 1988 re another taxpayer;

. Audit File Part II - File note re another taxpayer and Deed dated 14 June, 1988;

. Audit File Part II - Copy of file notes and losses forward; and

. Audit File Part II - Office memorandum re dual assessments on 11 July, 1988.

B. Under section 42

. Audit File Part I - Minutes of meeting among AGS, DPP and ATO on 17 September, 1987;

. Audit File Part I - Notes re meeting AGS, DPP and ATO on 18 September, 1987;

. Audit File Part I - Record of meeting among DPP, AGS and ATO on 15 October, 1987;

. Audit File Part II - Copy letter from AGS to ATO dated 12 February, 1988.

. Audit File Part II - Copy minutes of meeting among AGS, DPP and ATO on 18 March, 1988;

. Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 8 April, 1988;

. Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 20 April, 1988; and

. Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 2 May, 1988.

A. Under section 38:

. folio 7 - all information other than the two entries at the top of the document and relating to applicant;

. folio 98 - first two sentences of second paragraph beginning "Re";

. folio 122 - last paragraph beginning "Net" (N.B. total exemption under section 42);

. folios 122-123 - paragraph beginning "Re" on folio 123 and continuing for the first half of folio 124 (N.B. total exemption under section 42);

. folio 125 - from the third line beginning "he" and ending "Collie" at the end of the fourth line and the first four lines of the second paragraph (N.B. total exemption under section 42);

. folios 168-169 - the last three lines on folio 168 and the first eleven lines on folio 169 to and including the word "companies" on that folio (N.B. total exemption under section 42);

. folio 169 - the last two lines (N.B. total exemption under section 42);

. folio 170 - seventeenth line commencing "$" (N.B. total exemption under section 42);

. folio 171 - fourteenth line commencing "T" (N.B. total exemption under section 42);

. folio 181 - all information to the left of the two circles at the right hand edge of the folio;

. folio 182 - all information other than that in the right hand circle and the circle to which it is connected;

. folio 202 - the first sentence beginning "Mr" in the first substantive paragraph and the first sentence beginning "Mr" in the second substantive paragraph (N.B. total exemption under section 42);

. folio 227 - the last sentence beginning "They" in the second dot point and the whole of the third dot point (N.B. total exemption under section 42);

. folio 228 - the first three sentences of the first paragraph on the folio, the name appearing after the words "Collie and" in the first line of the second paragraph and the second sentence (beginning "The") in the third paragraph (N.B. total exemption under section 42);

. folio 229 - paragraph (i) and the final paragraph beginning "The" (N.B. total exemption under section 42);

. folio 232 - fourth sentence (beginning "None" of first paragraph (N.B. total exemption under section 42);

. folio 240 - lines 4-9 (N.B. total exemption under section 42);

. folios 353-354 - the last five lines of folio 353 and the passage on folio 354 to the first "12/10/88";

. folio 360 - three lines following the list and the last six lines;

. folio 362 - from "the" in line two of the first sentence of the note dated 20 January, 1988 to the end of that sentence;

. folio 400 - the first sentence of the second paragraph;

. folios 451 and 452 - the words beginning "as" in each of the entries numbered 1,3,4,9 and 10;

. Audit File Part I - Record of internal ATO meeting re settlements 10 July, 1987 - all names in the second and third paragraphs on the first folio other than the applicant's name;

. Audit File Part I - Record of telephone conversations re legal action on 28 September, 1987 - all of the document other than the sentence beginning "I" at the beginning of the third paragraph; and

. Audit File Part I - Copy of file note re another taxpayer on 29 November, 1987 (sic) (should read "29 September, 1987") -

- in the folio with the number "56" at the top - the amount shown in line 7, the first two words in the substantive paragraph starting at line 8 and the figure and next three words or groupings in line 10; and

- in the folio with the number "44" at the top - the amount shown in line 6.

. Audit File Part II - Copy of documents attached to the 1981 year return of another taxpayer - all folios other than:

- the letters written by Mr Collie dated 3 August, 1979 and 30 August, 1979; and

- two pro forma authorities giving Mr Collie to sign cheques (other than the name of the other person given such authority).

. folio 225 - the last two dot points (N.B. total exemption under section 42);

. folio 228 - fourth paragraph (N.B. total exemption under section 42);

. Audit File Part I - Record of internal ATO meeting re settlements 10 July, 1987 - all names (other than Mr Collie's name) referred to in the second and third paragraphs in the second paragraph of the first folio; and

. Audit File Part II - Copy of documents attached to the 1981 year return of another taxpayer - the name of the second signatory (i.e. other than Mr Collie) on two pro forma authorities to sign cheques.

B. Under section 42

. folios 160-161 - all of folio of 160 and all of folio 161 other than those words appearing after the date "21.4.87" when it first appears and up to and including the date "27/4/87";

. folio 249 - the first ten substantive lines; and

. folio 187 - the second entry starting after the second occasion on which the date "11 May, 1987" appears.

Adjourns further consideration in relation to the following parts of the following parts of documents:

. Copy of file note re another taxpayer on 29 November, 1987 (sic) (should read "29 September, 1987") - the folio with the number "44" at the top

On 19 March, 1996, the applicant, Mr Ian David Stafford Collie, made a request to the Australian Taxation Office ("ATO") under the Freedom of Information Act 1982 ("the FOI Act"). In very general terms, his request was for access to documents relating to the consideration by the Commissioner for Taxation, or one of his delegates, of certain aspects of Mr Collie's taxation affairs.

2. This request was properly made under section 15 of the FOI Act. Thirty days after receiving his request, the ATO had not notified Mr Collie of any decision it had made. Furthermore, it had not determined that the requirements of sections 26A, 27 or 27A made it appropriate to extend the time within which it could respond (sub-section 15(6)). It followed that the principal officer of the ATO, the Commissioner of Taxation ("Commissioner"), was deemed to have made a decision refusing to grant access to the documents. The date of that decision was on or about 18 March, 1996. Mr Collie was then entitled to apply to this tribunal for review of that deemed decision (sub-section 56(1)). This he did on 24 May, 1996 (T documents, pages 1.2-1.5).

3. The ATO made a decision in relation to the request on 12 June, 1996. Mr Lindsay Barnes, who is an officer of the ATO in its Appeals and Review Section, identified those documents which he had identified as being relevant to the request. Some information in those documents was regarded as exempt under section 38 of the FOI Act on the basis that it revealed information relating to the affairs of persons other than Mr Collie. Other information relating to the names of ATO officers was regarded as exempt under paragraphs 40(1)(c),(d) and (e). Information of both types was deleted from the documents and Mr Collie given access to the documents subject to those deletions. The documents were sent to him with a letter written by Mr Humphries, Deputy Commissioner of Taxation, on 12 June, 1996 (T documents, pages 9-10).

4. At the hearing, Mr Collie was represented by Mr Dutney Q.C. and the ATO by Mr Bickford of counsel. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") were admitted in evidence ("the T documents") together with an affidavit of Mr Graeme Manser and a bundle of documents providing background to the request and the documents requested. The documents for which exemption was claimed were lodged with the tribunal and have been considered in preparing these reasons. Oral evidence was given by three officers of the ATO: Mr Manser, Mr Bernard Joseph Carr and Mr Frank La Scala.

5. There were two broad issues in this case. One is to determine those documents which are relevant to the request. The ATO has identified a range of documents which, by agreement, were reviewed by Senior Member Beddoe in preliminary proceedings in the tribunal. Mr Beddoe indicated those documents which he considered either are, or could be, relevant to the request. All of the documents he identified have been included among those to be considered in this case but the ATO has submitted that some are irrelevant.

6. The second issue to determine is whether any of those documents which are relevant are exempt under the provisions of the FOI Act.

7. Although the purpose for which Mr Collie seeks access to the documents is generally not relevant (see paragraphs 31 - 40 below ), it is useful to give a little context to both the request and the documents. Therefore, for the purposes of this hearing, I have made several findings of fact which I will set out in the following paragraphs. Those findings of fact do not purport to cover the whole of the events which have occurred in relation to, and as a result of Mr Collie's financial affairs. The findings are made on the basis of the oral evidence in the case but more particularly on the evidence in Mr Manser's written material and the written material. I note that no confidentiality order has been sought under section 35 of the AAT Act in relation to that material. In addition, I note that annexed to Mr Manser's affidavit were segments of a further affidavit, which he had sworn and which had been filed in the Federal Court in proceedings between Mr Collie and the Commissioner of Taxation. Those proceedings were not conducted on a confidential basis.

8. Mr Manser is an accountant who has been engaged in the ATO in the conduct of audit and taxation investigations for the past 20 years. Based on the evidence in his affidavit to the Federal Court (Annexure "A" to his affidavit of 7 March, 1997), I find that he was one of the officers who investigated Mr Collie's financial affairs for the years of income ending 30 June, 1978 to 30 June, 1982 ("the relevant years").

9. Those investigations started on 8 October, 1982 and, by 15 June, 1984, he had formed the opinion that Mr Collie had understated his income for the relevant years. Mr Manser, together with Mr Alexander who was another ATO officer engaged in the investigation, prepared an interim report. That interim report set out the opinions which they had formed. Also on 15 June, 1984, another ATO officer engaged in the investigation, Mr Hamilton, completed a report setting out his opinions regarding Mr Collie's affairs.

10. The investigations continued after 15 June, 1984 when Mr Manser said that he and another investigator, Mr Alexander, focussed on the activities of fee earning entities in Mr Collie's group of companies. By 15 March, 1985, they had prepared a report specifically related to the assessment for the year ending 30 June, 1978. I find on the basis of Mr Manser's affidavit in this tribunal, that a copy of that report was given to Mr Collie. On the basis of Mr Manser's affidavit to the Federal Court, I find that he and Mr Alexander prepared another report, also dated 15 March, 1985, in relation to Mr Collie's financial activities generally in all of the relevant years.

11. On or about 19 March, 1985, Mr Hamilton prepared and circulated within the ATO a note. On the basis of the information in that note, a decision was made as to the penalty taxes which should be imposed upon Mr Collie. That decision was dated 3 April, 1985 and was later confirmed on 9 April, 1985 by Mr Lowden, the then Acting Assistant Director.

12. Officers of the ATO interviewed Mr Collie and discovered that he had associations with another taxpayer whose affairs were also under investigation. As a result of that discovery, the ATO reduced the amount of additional income which had previously been assessed to Mr Collie. This was confirmed by Mr P.J. Meade, Executive Officer in the ATO, in a minute dated 29 April, 1985.

13. Mr McTigue, Deputy Commissioner for Victoria, confirmed that there was sufficient information to enable the assessment of Mr Collie's income for the relevant years. That course was approved in relation to the year ending 30 June, 1978 following minutes signed by Mr McTigue on 27 May, 1985 and by Mr N.W. Hunt, Assistant Deputy Commissioner, on 7 June, 1985.

14. This was followed by Mr Collie's lodging an objection in relation to that assessment. He did that on 8 August, 1985 (T documents, T8).

15. On 13 March, 1986, Mr Hamilton, Mr Alexander and Mr Manser signed a minute recommending the issue of default assessments in respect of the remaining years ending 30 June, 1979 to 30 June, 1982. Those amended assessments were issued and the total amount of income assessed as understated in respect of the relevant years was $11,913,828. Mr Collie lodged objections to each of these assessments on 27 May, 1986.

16. At some stage, Mr Collie was charged with conspiracy to defraud the Commonwealth of sales tax. The criminal trial commenced in the Supreme Court of Victoria and lasted for several weeks. He was found guilty on 29 April, 1987.

17. In September, 1987, Mr Michael Hart approached the ATO on behalf of Mr Collie. There were various discussions leading to Mr Collie's offering to settle his taxation liability with the payment of $250,000. After negotiations, a Deed of Settlement was entered between Mr Collie and the Commissioner of Taxation. That deed was signed on 10 June, 1988. The objection in relation to the year ending 30 June, 1978, was disallowed but the other objections were not dealt with and were withdrawn.

18. Following Mr Collie's failure to pay the sum of $250,000 pursuant to the deed, the Commissioner took action to recover the total amount due under the amended assessments. That recovery remains the subject of proceedings in the Supreme Court of Victoria.

"1. Documents reflecting or relating to any action by the Australian Taxation Office in considering or acting on the recommendations of the ATO auditor Graeme Manser made in a report to the Applicant entitled "Report on Settlement Proposal" apparently prepared in or about late 1987 with particular reference to paragraphs 96/97 and 98 thereof.

Documents reflecting or relating to any action by the commissioner in the performance of his duties under form S.186 of the Income Tax Assessment Act in respect of the following objections lodged by the Applicant:

30/06/82 389209/4 15/04/86 27/05/86." (T documents, page 5)

20. I am satisfied that the documents which either are, or may be, relevant to Mr Collie's request have been identified by the ATO and are found in the Commissioner's files described as:

. Recovery File Part II

. Recovery File Part IIIA

. Recovery File Part IIIB

. Audit File Part II

21. Annexure "B" to Mr Manser's affidavit in these proceedings listed each of the documents in these files. The documents to which access had been granted, with certain deletions, by the time of the preparation of the T documents are included in those documents (pages 11-31).

22. Since then, the ATO has released further documents. These are identified in Annexure "B" to Mr Manser's affidavit with a "3". All were released even though the ATO continued to regard them as not relevant to the request and that is apparent from the notes in Annexure "B". Some were released even though the ATO considered that a claim for exemption could have been made under either or both of sections 38 and 40. That is also apparent from Annexure "B" and it is a step the ATO was quite entitled to take.

23. Annexure "B" to Mr Manser's affidavit also sets out a number of documents (marked with an "6") to which Mr Collie has indicated he no longer seeks access. I have given them no further consideration in this case.

24. The remaining documents listed in Annexure "B" are marked with nothing or with the initials "WL" standing variously for "would like" or "wish list". All of these documents are said by the ATO to be not relevant to the request. In relation to some, this is the only claim that is made. In relation to others, it is also argued that they, or parts of them, are exempt under one or more of sections 38, 40 and 42. It was indicated that, even where claims for exemption are made, not all of the documents will necessarily be exempt. The tribunal, therefore, was invited to delete only those passages which were exempt.

ARE ALL OR SOME OF THE DOCUMENTS RELEVANT TO THE REQUEST?

25. In answering this question, I must have regard to the request. As I said in Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683, section 15 of the FOI Act

"... gives an applicant a broad indication only of how he or she may frame a request and as the documents requested may be described in broad terms also, it follows that a request cannot be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings. It is neither legislation nor pleadings and has not necessarily been drafted with the same eye to detail.

... I must stand back and take an overall view of the request and the context in which it is made bearing in mind that those making requests under the Act cannot necessarily be expected to have an intimate knowledge of the subject matter of the documents they seek or of the workings of government and also bearing in mind what Mr Olsson submits was intended to be covered by the request. ..." (page 692)

26. Part of the context to the request comprises a document entitled, "Report on Settlement Proposal" ("the Report"), the objections lodged by Mr Collie to the assessments for the financial years ending 30 June, 1978 to 1982 and section 186 of the Income Tax Assessment Act 1936 ("ITA") which provides:

"The Commissioner shall consider the objection, and may either disallow it, or allow it either wholly or in part, and shall serve the taxpayer by post or otherwise with written notice of his decision."

27. The terms of the objection lodged in relation to the 1978 year are included in the T documents. They are wide ranging and cover a range of issues.

28. Paragraphs 96, 97 and 98 of the Report set out the reasons why Mr Manser recommended that the settlement should be accepted and the steps the Commissioner would take if the recommendation were accepted. There was a summary of the amended results of the investigation.

29. The objections and paragraphs 96, 97 and 98 raise a wide range of issues. In performing his duties under the repealed section 186, the Commissioner must investigate all aspects of the objections and matters relating to a taxpayer's obligations under the ITA in relation to the relevant years. Those investigations will be relevant to the objections even if the Commissioner's investigations, deliberations and records make no specific reference to those objections before he determines them.

30. Having read all of the documents and bearing in mind the general principles I have set out, I have decided that all of the documents identified in Annexure "B" to Mr Manser's affidavit are relevant to Mr Collie's request under the FOI Act.

WHAT IS THE RELEVANCE OF ANY MOTIVES MR COLLIE MAY HAVE FOR OBTAINING ACCESS TO THE DOCUMENTS?

31. Mr Bickford submitted that Mr Collie has made and pursued his request under the FOI Act in order to assist him to prepare his case in a matter in the Victorian Court of Appeal. It was not the first time, he said, that this had been done and he referred to the cases of Murtagh and Federal Commissioner of Taxation (1984) 84 ATC 4,516, Webb v Deputy Commissioner of Taxation (1993) 26 ATR 411 and Re Kingston Thoroughbred Horse Stud and Australian Taxation Office (1986) 86 ATC 2,030.

"Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access." (sub-section 11(2))

33. This provision means that the case of Webb is clearly distinguishable. That case was concerned with discovery and inspection in the context of an application under the Administrative Decisions (Judicial Review) Act 1977 for the review of the Commissioner's decision to refuse to remit additional tax for late payment. Cooper J noted that

"_Discovery and inspection in the context of judicial review will not be allowed where an applicant is 'fishing' for a ground upon which the decision can be attacked (_Nestle Australia Ltd v FCT (1986) 11 FCR 453; 17 ATR 747; 67 ALR 128 and on appeal [1986] FCA 368; (1986) 12 FCR 257; 17 ATR 113; 69 ALR 445." (page 421)

This principle is not relevant in this case in view of the clear provisions of sub-section 11(2).

34. The important qualification in sub-section 11(2) is that it is "subject to" the FOI Act for it is clear from the cases to which Mr Bickford referred that there are occasions on which motives of the person seeking access are relevant.

35. In Murtagh, the tribunal considered a submission that access to certain documents under the FOI Act would render discovery rules redundant if litigation were to take place at a later time between Ms Murtagh and the Commissioner. The tribunal noted that there was a reference to an administrative body, the Taxation Board of Review, which had no rules of discovery. There were, therefore, no rules of discovery to subvert. With respect to possible proceedings in the Supreme Court, the tribunal said that there were none. Had there been, it would have been appropriate to consider whether, in the public interest, the grant of access to the documents should be left to the court. The court has the power to order disclosure if, having regard to the justice of the case, it thinks it appropriate to do so.

36. In the case of Mr Collie's application, he is involved in ongoing court proceedings but the application of the principles expressed in the Murtagh case do not lead to the conclusion that those proceedings are automatically relevant. It is clear from Murtagh that regard must be had to the precise terms of each of the exemption provisions to determine the relevance of the practical effects which disclosure may have on other proceedings.

37. This is illustrated by the Murtagh case. Sub-section 36(1) was one of the exemption provisions under consideration in that case. It specifies that two requirements must be met before a document may be exempt under its provisions. The first is that it would disclose information of a certain type and the second that its disclosure "would be contrary to the public interest" (paragraph 36(1)(b)). It is in relation to the public interest aspect that the effect on a court's rules of discovery may become relevant. It was in that context that the tribunal first considered the possible effect upon proceedings in the Tax Board of Review.

38. Neither of the exemptions claimed in this case under sections 38 or 42 requires that disclosure of a document be contrary to the public interest in order to establish the exemption. The effect of sub-section 40(2) is that the exemption claimed under sub-section 40(1) does not apply if disclosure would be in the public interest. This is a different test from that established by paragraph 36(1)(b) and, in this case, will only become relevant if one of the grounds set out in sub-section 40(1)(a) is made out.

39. The tribunal in Re Murtagh also considered the effect of disclosure under the FOI Act in the context of the exemption in section 37 of that legislation. That exempts from disclosure certain documents affecting the enforcement of the law and the protection of public safety. As a matter of fact, proceedings in another place may be relevant in determining whether the exemption has been proved. They were found to be so relevant in the case of Re Kingston Thoroughbred Horse Stud, to which Mr Bickford referred. The tribunal was considering claims for exemption not only under sub-section 37(1) but also under sub-section 40(1)(d).

40. There is, however, no overriding provision that proceedings between the parties in another court or tribunal automatically limits the right of access under the FOI Act. Regard must be had to the particular exemptions claimed to be relevant.

THE DOCUMENTS FOR WHICH EXEMPTION IS CLAIMED AND THE EXEMPTIONS CLAIMED

Documents to which secrecy provisions of sub-section 16(2) of the ITA Act apply - section 38

41. The ATO submitted that certain documents were exempt under section 38 in so far as they contain material, the disclosure of which is prohibited by sub-section 16(2) of the Income Tax Assessment Act 1936 ("ITA Act"). Sub-section 38(1) is relevant in this case and provides:

"(1) Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(i) that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment."

Sub-section 16(2) is a provision which is specified in Schedule 3.

42. I should consider what is meant by sub-section 16(2). The information which an officer may not divulge except in the performance of his or her duty as an officer must meet the description in that sub-section. In particular, it must be "information respecting the affairs of another person" that has been acquired by the officer as mentioned in the definition of "officer" (sub-section 16(2)). Reference to the definition, shows that the information respecting the affairs of any other person must have been "disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax" (sub-section 16(1)).

43. What are the "affairs" of a person? The word "affairs" was considered in Johns v Connor and Others [1992] FCA 193; (1992) 107 ALR 465 in the context of a notice issued under section 19 of the Australian Securities Commission Act 1989. That notice required Mr Johns to appear for examination in relation to an investigation into the affairs of a certain company. One of the grounds upon which the notice was attacked as to its validity was that the notice failed to comply with a statutory requirement to state the general nature of the matter that the Australian Securities Commission was investigating.

44. In finding that the notice was drafted too broadly to meet the statutory requirement, Lockhart J said:

"`Affairs' is a word of very wide import. In its ordinary meaning `affairs' in relation to a corporation includes the activities, business or concerns of the corporation." (page 476)

45. A similarly wide meaning would seem to be appropriate whether the affairs of a corporation or the affairs of an individual are under consideration. The only qualification is that the information about the affairs has been obtained under ITA or of any previous law of the Commonwealth relating to income tax.

46. I also note that, in order to come within the terms of sub-section 16(2), the information must be "respecting the affairs" of a person. Bearing in mind the ordinary meanings of the word "respecting", this means that the information must be in "Relation, connection, reference, [or] regard" to the person's affairs (New Shorter Oxford Dictionary, 1993), or in similar terms, is information regarding or concerning his affairs (Macquarie Dictionary, 2nd edition, 1991).

47. In order for information to come within the description of information "respecting any other person" must that other person be able to be identified? I note that the tribunal in Re Mann considered a document in which the names of individuals were not ascertainable. It said:

"It was suggested that the documents contained information concerning the affairs of the CTHC and specialists employed by CTHC, said to number 45-50 during the Fund's existence. Unless the 'information' represented by these documents falls within s 16 of the ITA Act the whole question of s 38 is irrelevant. It was suggested that the documents contained information concerning the affairs of the CTHC (see par A(2)(a) of the written submission); of the trustees of the individual specialists were named in the documents no claim of exemption was made by the agency under s 41 ('unreasonable disclosure of information relating to the personal affairs of any person'). While the wording of s 16 is of course not identical with s 41, it is hard to see how it is alleged on the one hand that a document contains information respecting the affairs of a person (s 16 ITA Act) so as to attract, on the broader view, s 38 FOI Act, but that it was apparently not regarded as an apt subject of a claim under s 41 should the s 38 claim fail. These aspects were not pursued at the hearing and we do no more than refer to them." (page 270)

48. I have some reservation in following this approach. That reservation stems from paragraph 32(a) of the FOI Act. That paragraph provides that a provision under Part IV delineating an exemption

"shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents."

49. In light of this paragraph I have concluded that I should not interpret section 38, and so sub-section 16(2), in the light of the provisions of section 41. I have had regard then to the provisions of sub-section 16(2) on their own. They do not require that the person be able to identified from the information before an officer is under an obligation not to reveal that information. It is enough that it can be identified as information respecting the affairs of another person.

50. What is meant by the requirement that the information in respect of which the secrecy provision operates is not only information respecting the affairs of another person but that type of information that has been "... disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax" (sub-section 16(1))? The ITA is the only legislation which is relevant in this case. Under it, obligations to disclose information by way of returns or further or fuller returns are found in sections 162 and 163 of the ITA Act. Under section 263, the Commissioner or any officer authorised by him, has broad powers to obtain access to documentary material. Section 264 gives the Commissioner wide powers to require persons to give him information and evidence. He has power to seek information and documents outside Australia and his powers in that regard are found in section 264.

51. Whether information comes within the description of information described in sub-section 16(2) is a matter of fact. The burden of proving that it does meet the description falls upon the ATO (section 61). In some instances, it can do that by reference to the nature of the information itself. It may clearly be information of a sort that could only have been acquired by an officer of the ATO because it was disclosed or obtained under the provisions of the ITA or of a previous Commonwealth law relating to income tax. Where the nature of the information itself does lead to that conclusion, evidence needs to be found in other sources.

52. If disclosure of the information is prohibited by sub-section 16(2), it is exempt under section 38 unless it falls within the qualification specified in sub-section 38(2). That sub-section provides that:

"Where a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person."

53. What is meant by "personal information" is set out in sub-section 4(1) which provides that:

"`personal information' means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion."

54. It follows that, if section 38 of the FOI Act is not to apply, the information must be "information or an opinion ... about) the person requesting the document. The word "about" is defined in the New Shorter Oxford Dictionary, in so far as it is relevant as meaning:

"6 In connection with; touching; concerning; on the subject of; in relation to".

It is defined in similar terms in the Macquarie Dictionary.

55. It was assumed during the hearing, and is clear from documentation such as the Deed of Settlement (part of Exhibit B) that Mr Collie's affairs and the affairs of others (including corporate entities) have, at the very least, touched upon each other on occasion. That they are intermingled, at least to some extent, does not mean that the affairs of other persons are regarded upon each occasion as the affairs of Mr Collie. I have considered each document in order to characterise to whose affairs any information may relate. If they relate to Mr Collie, I have considered whether that is information or an opinion about him that is personal information about him and so excluded from the exemption by sub-section 38(2) in any event. Where it relates to the affairs of a person other than Mr Collie, I have considered whether it was disclosed or obtained under the ITA. If so, it comes within the secrecy provisions of sub-section 16(2) of the ITA and so is exempt under section 38 of the FOI Act.

56. Where there is information relating to the affairs of persons (other than Mr Collie) who are individuals and who can be identified or whose identity can be readily ascertained from that information, I have considered whether that information is information or opinion, whether true or not, about them. If it is such information, it is personal information within the meaning of the definition of that term in sub-section 4(1) (see paragraph 53 above). I have then considered whether disclosure under the FOI Act would be an unreasonable disclosure of that personal information so that it is exempt within the meaning of sub-section 41.

57. If I am satisfied that it is exempt under sub-section 41, I have found it to be exempt. If I am not satisfied that it is, by its very nature and the context of the files in which it appears, exempt, I have considered whether the procedures in sub-section 27A should be followed. Those procedures must be followed if

(i) the officer or Minister dealing with the request; or

(ii) a person (the `reviewer') reviewing under section 54 a decision refusing the request;

that the person referred to in paragraph (a), or, if that person has died, the legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt document under section 41." (paragraph 27(1AA)(b)).

58. In light of the specific reference to the reviewer as well as to the officer and Minister, I have queried whether the tribunal should follow the procedures in section 27A. Issues of the practicality of following the procedures in section 27A in external review proceedings have also caused me some concern. Following the procedures would necessarily lead to an adjournment. That need not be a major difficulty in the resolution of the proceedings for the decisions in relation to other documents can be reviewed, decisions made on that review and the parties able to take whatever steps are appropriate in relation to those decisions on review.

59. Of greater concern to me are the review rights given by section 59A where an agency or Minister decides that the document is not an exempt document under section 41. If the tribunal is bound to follow the procedures in section 27A, the effect will be that it must also follow sub-section 27A(2). Among those procedures are the requirement that, where it is decided that the document, or edited copy of it, is not exempt, access cannot be given until the time has passed for the person to lodge an application under section 59A. If such an application were lodged, the practical result would be that tribunal would be asked to review a decision which it had just made. That does not seem to be an appropriate or practical result.

60. I am conscious that this aspect was not the subject of submissions at the hearing. That would normally be a matter on which I would ask for further submissions. There are, however, time constraints on both the parties and the tribunal which mean that the decision must be made quickly. I have decided to express my view, tentative though it may be, that section 27A is not applicable in review proceedings in the tribunal. I have decided upon a practical approach that, to some extent, takes into account the rationale of the procedure in section 27A. That is to adjourn further consideration to enable the ATO to approach the persons for their views upon whether the document, or part of it, should be found to be exempt. That approach should only be made if Mr Collie indicates that he wishes to pursue his request in relation to those passages in the documents concerned.

61. The documents in respect of which a claim for exemption has been made are quite numerous and need to be considered individually. Mr Manser's evidence in support of their being exempt is that they are internal documents relating to the affairs of third parties. This was not expanded upon in oral evidence. The documents which I am required to consider have not been marked by the ATO to indicate those parts which it considers are within section 38. The task would have been considerably easier had it done so. In the following passages, I have used the word "person" in the broad sense used in the Acts Interpretation Act 1901 to include a body politic, body corporate or individual (sub-section 22(1)).

(i) The flow chart relates to certain aspects of the affairs of both Mr Collie and persons other than Mr Collie. The Commissioner has wide powers to obtain information or to require its disclosure under the ITA Act. The type of information in the document is of a type that leads to the conclusion that it was obtained under those laws. It comes within sub-section 16(2) and all of the chart other than that part of it referred to in the following paragraph is exempt under section 38.

(ii) The chart shows a reference at the top to two pieces of information that are about Mr Collie. That information includes the name of the two persons connected with that information. They are personal information about him (see paragraph x above) and so are not exempt under sub-section 38(2).

Folio 76 - a note of a telephone conversation regarding a meeting with the Australian Government Solicitor's Office ("AGS") on 21 July, 1986.

(i) A reference is made to a person other than Mr Collie or an ATO officer. That reference is not a reference to that person's affairs but to Mr Collie's intentions in relation to its affairs. It is, therefore, a reference to Mr Collie's activities and intentions and so his affairs rather than the other person's affairs. As it is a reference to Mr Collie's activities and intentions it is personal information about him and so excluded from the exemption in section 38.

(ii) Even if I am incorrect in this view, there is no evidence to establish that the information in relation to the affairs of those other persons was disclosed or obtained under the ITA.

(iii) The remaining material in the note relates to administrative arrangements and does not relate to the affairs of any person within the meaning of sub-section 16(2).

Folios 77-81 - a record of a meeting between officers of the Director of Public Prosecutions ("DPP"), AGS and ATO on 6 August, 1986.

(i) These notes contain, interspersed with other information, information regarding statements made by Mr Collie and information about him, his views and opinions as to his likely reactions. This is personal information about Mr Collie and so is not exempt under section 38 for it comes within sub-section 38(2).

(ii) The notes also contain material which indicates what could generally be described as the discussions of the officers at the time in relation to ensuring that Mr Collie ultimately met his taxation obligations, whatever those obligations might be. There is nothing in that type of information which establishes, or even suggests, that it is information disclosed or obtained under taxation laws. It is, therefore, not within the purview of sub-section 16(2).

(iii) The sentence beginning "The asset" on folio 78 refers to the affairs of persons other than Mr Collie but this is information which may or may not have been acquired in the ways described in sub-section 16(2) with reference to sub-section 16(1). The onus is upon the ATO and I am not satisfied that it has met it. The information is not exempt.

Folio 98 - a record of an internal telephone conversation on 28 November, 1986.

(i) For the reasons given in paragraph (ii) in relation to folios 77-81, I do not consider that the first or third paragraphs contain information that could be regarded as exempt under section 38.

(ii) The first two sentences of the second paragraph contain references to persons other than Mr Collie and those references are to information about their affairs disclosed or obtained under the ITA Act. Some are identifiable and some are not but, for the reasons I have given at paragraphs 46-49 above, that is of no consequence. The information, I am satisfied, would have been disclosed or obtained under the ITA and is exempt under section 38.

(iii) The third sentence of the second paragraph relates to personal information about Mr Collie and is not exempt as it is within the exception in section 38(2). It also contains other information which I am not satisfied was disclosed or obtained under the ITA and so does not come within sub-section 16(2).

(i) This document relates to the affairs of persons other than Mr Collie. It is information obtained under the ITA Act, comes within sub-section 16(2) and so is exempt under section 38.

Folios 115-117 - Record of meeting DPP, AGS and ATO on 29 January, 1987.

(i) These notes contain information regarding statements made by Mr Collie and information about him, his views and opinions as to his likely reactions. It is personal information about Mr Collie and not exempt under section 38.

(ii) The notes also contain material which indicates what could generally be described as discussions of the officers at the meeting in relation to ensuring that Mr Collie ultimately met his taxation obligations. There is nothing in the information that suggests it comes within sub-section 16(2) and so within the exemption specified in section 38.

(iii) The sentence beginning "Compliance" in the first paragraph on folio 116 and all but the last seven words of the second paragraph in that folio refer to persons other than Mr Collie. The information in those passages does not, however, relate to information about their affairs obtained under the ITA. They are not exempt under section 38 but might arguably be exempt under section 41.

(iv) The information in the passages is personal information about persons other than Mr Collie. Having regard to the matters I have raised in relation to sections 27A and 41 of the FOI Act, I have concluded that those persons might reasonably wish to argue that disclosure under the FOI Act would be an unreasonable disclosure of that information. In view of that, I would have decided that I should not make a decision to grant access to it until the ATO has taken steps to ask the persons for their views as to whether they would wish to contend that the document is exempt. I would have decided that the ATO should only take those steps if Mr Collie indicated that he continued to seek access to the document. Further consideration of these passages would have been adjourned.

(v) I say "would have" for I have decided that the whole folio is exempt under section 42 and adjournment in relation to the section 41 aspect would serve no useful purpose.

Folios 122-127 - Record of meeting DPP, AGS and ATO on 17 February, 1987.

(i) These notes record discussion relating to ATO's actions in relation to Mr Collie's affairs and speculation as to Mr Collie's plans. That information is not exempt under section 38 for there is nothing, either in the nature of the information or in any evidence, that establishes that it was disclosed or obtained under the ITA. In so far as it relates to speculation about Mr Collie, it is personal information about him. In neither case is the information exempt.

(ii) Point 3 on folio 122 is not exempt because it expresses an opinion about what Mr Collie may do. It is personal information within the ambit of sub-section 38(2).

(iii) The last paragraph on folio 122 reflects information about persons other than Mr Collie. The nature of the information satisfies me that it is within the ambit of sub-section 16(2) and is exempt.

(iv) The paragraph beginning "Re" on folio 123 and continuing for the first half of folio 124 comprises information about Mr Collie and persons other than Mr Collie. Some of that information is exempt under section 38 as it comprises information disclosed or obtained under the ITA. Some is not. It is not, however, possible to separate, in accordance with section 22 of the FOI Act, the two types of information so that the document would not be exempt. The two types of information in this passage are too intertwined to enable that to be done. That passage must, therefore, be regarded as exempt.

(v) The sentence beginning "Collie" in the second paragraph on folio 124 and ending ")" refers to information relating to both Mr Collie and another person. It is not information which I am persuaded comes within sub-section 16(2) by reference to its nature. It may or may not and the ATO has not satisfied the onus it bears in establishing that it does and is exempt.

Collie and Deputy Commissioner of Taxation [1997] AATA 713 (4 April 1997)

At a glance

Court

Decision date

Source

Judgment (569 paragraphs)

Collie and Deputy Commissioner of Taxation [1997] AATA 713 (4 April 1997)

Legislation Cited (7)

Cases Cited (10)