R. Mitchell v Commissioner of Taxation #2
Dear Australian Taxation Office,
I, Richard J Mitchell, being a party to the proceedings and the entity who fronted the AAT hearing, request all correspondence, including digital, from and to the Commissioner's office and those empowered to act on his behalf in respect of the publicly listed determination of R. Mitchell v Commissioner of Taxation.
Please redact all names and other identifications from documents such that any document will not contravene Section 355-30 in Schedule 1 of the TAA 1953 and will therefore not be "reasonably capable of being used to identify the entity".
This single action should satisfy Section 355-25 of the same and Section 38 of the Fredom of Information Act.
The email address used in this request is the same to which all digital documents were supplied to by the Respondent in the matter.
Yours faithfully,
Richard J Mitchell
Dear FOI Applicant,
Please see attachment.
Yours faithfully,
FOI Team
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IMPORTANT
The information transmitted is for the use of the intended
recipient only and may contain confidential and/or legally
privileged material. Any review, re-transmission, disclosure,
dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other
than the intended recipient is prohibited and may result in
severe penalties. If you have received this e-mail in error
please notify the Privacy Hotline of the Australian Taxation
Office, telephone 1300 661 542 and delete all copies of this
transmission together with any attachments.
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Dear Applicant,
Your FOI request seeks taxpayer documents that are protected information
under s355-30 of the Taxation Administration Act 1953 (TAA). Under s355-25
of the TAA the ATO cannot provide access to those documents without
obtaining details about your authority to receive the documents. If you
are authorised to receive the documents, s335-25 of the TAA prevents us
from providing them to you publicly on the Right To Know website.
Please confirm your consent to withdraw this request. We suggest that you
ask the RTK administrators to remove it from the RTK website.
If you are authorised to receive the documents please make a request
directly to the ATO and include details of your authority to receive
documents about this taxpayer. Generally, requests for your own taxation
records such as tax returns, assessments and payment summaries are not
processed under FOI. They can be requested using the ‘Copies of tax
documents request form’ available at [1][1]www.ato.gov.au. FOI requests
can be sent to [2] [2][email address]
Kind regards,
FOI team
General Counsel
Australian Taxation Office
[3]cid:image001.png@01D0BE23.6D3E8110
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IMPORTANT
The information transmitted is for the use of the intended
recipient only and may contain confidential and/or legally
privileged material. Any review, re-transmission, disclosure,
dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other
than the intended recipient is prohibited and may result in
severe penalties. If you have received this e-mail in error
please notify the Privacy Hotline of the Australian Taxation
Office, telephone 1300 661 542 and delete all copies of this
transmission together with any attachments.
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References
Visible links
1. http://www.ato.gov.au/
2. mailto:[email address]
Dear FOI,
I will not withdraw this request. I have asked for information that is in the public interest. The information I seek was made public when the Commissioner for Taxation made a publicly available determination in respect of the request title.
If the Commissioner will not accept the request as it stands and issue redacted correspondence then a summary list will suffice. This list must show on single lines: date, time, from, to, subject matter, any relevant notes. Names can be substituted with titles such as: Applicant, Respondent, Counsel, AAT, or Senior Member.
I can make a new request for the summarised list as another FOI request R.Mitchell v Commissioner for Taxation #3.
Yours sincerely,
R. Mitchell
Richard Mitchell
Dear FOI applicant,
Your understanding of the taxation confidentiality laws is mistaken.
Under s 355-25 of the Taxation Administration Act 1953 it is an offence for a taxation officer to disclose protected information about an entity, to another entity.
Under s 355-30 protected information means information that was obtained under a taxation law relating to an entity, that identifies, or is reasonably capable of identifying, the entity. Even where names and other identifiers are removed from the documents, the information will still be protected information. An example is the situation here. If a tax officer disclosed, in response to the request, information about a person referred to in the request, then even with any names and other identifiers removed, the ‘de-identified’ information would be about a person identifiable by viewers of the RTK website. It would be protected information.
Under s 355-35, consent to the disclosure of protected information by the entity to which it relates, is not a defence to a prosecution.
The ATO cannot provide a person with protected information, unless the person properly identifies themselves to the ATO and proves their entitlement to receive the protected information. That identification process needs to done directly and confidentially with the ATO, in the approved manner. It cannot be done in a public forum such as the RTK website.
Documents containing protected information can never be provided via a public forum such as the RTK website. Even if the redactions of the type you suggest were not an unreasonable diversion of resources and were able to be made, providing the redacted documents would still disclose protected information. It would therefore be a breach of the taxation confidentiality laws. We also note the FOI Act does not require the ATO to produce new documents or information in response to a request.
Documents prepared for the dominant purpose of litigation are generally subject to legal professional privilege (LPP), and are therefore unconditionally exempt from release under s 42 of the FOI Act. It is highly likely that documents the Commissioner prepares for litigation are subject to LPP and exempt from release under the FOI Act. Therefore any FOI request for documents relating to the conduct of a litigation matter are unlikely to result in documents being released under FOI. The process of identifying if there are any documents that are not subject to LPP is likely to be an unreasonable diversion of the agency’s resources.
We reiterate that your FOI request will have to made directly to the ATO and include proper proof of your identity and entitlement to receive the documents. You should request the RTK administrators to remove these requests from the RTK website. We will not be entering into any further discussion about these matters on the RTK website, or acknowledging or processing any further requests received via the RTK website for documents containing protected information.
Kind regards,
FOI team
General Counsel
Australian Taxation Office
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IMPORTANT
The information transmitted is for the use of the intended
recipient only and may contain confidential and/or legally
privileged material. Any review, re-transmission, disclosure,
dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other
than the intended recipient is prohibited and may result in
severe penalties. If you have received this e-mail in error
please notify the Privacy Hotline of the Australian Taxation
Office, telephone 1300 661 542 and delete all copies of this
transmission together with any attachments.
**********************************************************************
Dear FOI,
Your understanding of basic logic wrt application of taxation law is mistaken.
The Commissioner for Taxation has chosen to publicly publish the names and titles of the persons involved in this matter. For this reason alone the information I seek regarding communications is now classed as unprotected information. Any subject matter relating to personal taxation information can be redacted as you have stated.
I agree informed consent cannot relinquish the Department from its statutory obligations.
The information I seek is not in direct use for the purposes of litigation and let the burden of proof fall to the accusor.
I am disappointed with the inconsistent reasoning applied by the Department so far. At no time has there been a valid reason as to why the publicly listed determination renders the information used in procuring the decision, to being protected information.
Yours sincerely,
Richard Mitchell