CORRS CHAMBERS WESTGARTH v FC of T

Judges:
J Dwyer SM

Court:
Administrative Appeals Tribunal

Judgment date: 25 September 1998

J Dwyer (Senior Member)

This is an application for review of a reviewable decision under the Freedom of Information Act 1982 (``the Act'') made 10 July 1997. The applicant's request was made on 12 March 1997 and sought access to the following documents:

``All reports, working papers, file notes and memoranda in the ATO's possession prepared and/or compiled as part of the Tax


ATC 2300

Strategy Review of Foster's Brewing Group Limited (`FBG') and its subsidiary companies conducted by the ATO during the period August 1994 to September 1995 including without limitation, the final report prepared by Mr Vladimir Stubin of the ATO.''

The applicant lodged with the letter of request an authority from Anthony Larkin, Public Officer of Foster's Brewing Group Limited which stated as follows:

``On behalf of Foster's Brewing Group Limited I hereby authorise officers of the Australian Taxation Office to release the documents sought and the information requested by Corrs Chambers Westgarth in their request dated 12 March 1997.''

2. Ms H Symon of Counsel appeared for Corrs Chambers Westgarth. Mr Kevin Bell Q.C. appeared for the Commissioner of Taxation. The Tribunal had before it the documents (``the T documents'') lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and an affidavit by Janette Patricia Farrell who gave evidence at the hearing. Although that affidavit was not given an exhibit number during the hearing I have now marked it as exhibit R1. The Tribunal also had before it two large folders containing the original decision and the decision on internal review and a folder of the documents released in full. Pursuant to s 64(1) of the Act the respondent produced, for inspection by the Tribunal only, a folder of documents claimed to be exempt in whole or in part. At the conclusion of the hearing the Tribunal gave leave to the parties to lodge written submissions within 7 days relating to the Tribunal's practice of making matters anonymous when delivering reasons for decision in taxation matters. The Tribunal hoped to receive an agreed statement but that did not occur. Due to Counsel's illness the Tribunal did not receive the written submissions from the respondent until 17 July 1998. The applicant's submission was received on 7 August 1998.

3. The primary decision in the matter was made by G. Madden on 3 June 1997 (T4). It released a number of documents and claimed exemptions in respect of a number of other documents. The applicant requested an internal review of the primary decision pursuant to s 54(1) of the Act. The decision on internal review (T6) was made on 10 July 1997 by E. Stillwell. Further documents were released by that decision. Additional material was released by Ms Stillwell by a supplementary decision on internal review of 24 July 1997 (T7). There was a further release of information on 15 August 1997 (T8).

4. Negotiations between the parties up to the date of hearing resulted in the release of additional documents. At the commencement of the hearing the Tribunal was informed by Counsel that there were only six documents remaining in dispute between the parties. That position was reached following a letter from Carmen McElwain, Senior Government Solicitor Tax Group, to Frank O'Loughlin, Corrs Chambers Westgarth dated 11 May 1998, a copy of which was made available to the Tribunal and has now been marked R2. Ms McElwain's letter enclosed the affidavit of Ms Farrell (exhibit R1) and copies of documents 22 and 85, which were released in full, and document 78 which was released with deletions. After some discussion at the commencement of the hearing, it was agreed that only six documents remained in dispute (see trans. p 9). The entries in respect of those six documents in the schedules to Ms Farrell's affidavit were as follows:

``Doc

NumberSummary

Schedule A - Wholly Exempt Documents

18 Copy of letter from ATO to an unrelated taxpayer about conduct of audit (with annotations). This document has no information regarding FBG or the conduct of a Taxation Strategy Review. The third party taxpayer is an unrelated public company and the letter refers to certain problems experienced by the ATO in accessing documents and information from that third party taxpayer. The annotations show which tax officer provided the copy letter and give no substantive information.

The letter was provided to the third party taxpayer by the ATO and details confidential occurrences between the ATO and the taxpayer regarding the exchange of information during that audit. It is exempt in full pursuant to section 38.

93 Copy of letter, on behalf of unrelated taxpayer, on application of s. 46 rebate.


ATC 2301

This document is exempt in full because it was generated by a consultancy on behalf of its client (the third party taxpayer) and addressed to the ATO. It deals with issues relating specifically to that taxpayer and cannot be released. This document also relates to document 94 which is exempt for the same reasons.

94 Copy of letter on application of s. 46 rebates.

This document is related to document 93 which is also exempt in full for the same reasons.

The document was generated by a financial consultancy on behalf of its client (an unrelated third party taxpayer). It deals with concerns relating to section 46 rebates in the context of that third party taxpayer's affairs and cannot be released in an edited form as the third party taxpayer may be identifiable from the remainder of the document.

105 Private ruling given in relation to an unrelated third party taxpayer.

This document is fully exempt as it is a ruling for a specific year of income for an individual unrelated taxpayer concerning the application of Part IVA to certain arrangements of that taxpayer. The ruling was provided to the third party taxpayer in the context of negotiations between the ATO and the taxpayer and no part of it is able to be released.

Schedule B - Partially Exempt Documents

17 Copy of document entitled `Record of Documents Removed from File'. It relates to audit documents removed from a file of a third party taxpayer, completely unrelated to this request as it does not concern either Fosters Brewing Group or the Taxation Strategy Review.

It has, however, been released in an edited form with deletions over any references to the third party taxpayer, its employees or representatives.

78 Note to A/g Senior Assistant Commissioner on request by tax agent for advice concerning unrelated third party taxpayer.

This document was generated as part of the ATO's consideration of a response to be given to the third party taxpayer and it deals specifically with the application of section 80G to the circumstances of that third party taxpayer. Deletions have been made to protect the identity of the third party taxpayer but otherwise the document has been released in full.''

The relevant legislation

5. The main section relied on in respect of each of those documents was s 38 of the Act. There was also reliance on s 40 which was described by Mr Bell as a ``subsidiary claim''. It will be dealt with later in these reasons. Section 38 provides as follows:

``(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
  • (b) either:
    • (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.

(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.

(2) 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.''

Section 38(1)(b)(i) refers to Schedule 3 of the Act which specifies:

``Income Tax Assessment Act 1936, sub- sections 16(2), (4F), (4FA), (4JB) and (5C)''

6. The relevant provision of the Income Tax Assessment Act 1936 (``the Tax Act'') is s 16(2) which provides:

``(2) Subject to this section, an officer shall not either directly or indirectly, except in the


ATC 2302

performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of `officer' in subsection (1).''

7. The main issue for determination by the Tribunal is the construction of s 16(2) of the Tax Act. Because of s 38(1)(a) and (b) of the Act, if disclosure of a document is prohibited by s 16(2) of the Tax Act, the document is exempt from disclosure under the Act.

8. Ms Symon and Mr Bell agreed that the reference in s 16(2) of the Tax Act to ``information respecting the affairs of another person'' applied to information respecting the affairs of a legal person, namely a company, as well as to the affairs of a natural person. Mr Bell said that in the case of each of the six documents the exemption claimed was on the basis that the document wholly or partially ``contained information respecting the affairs of another person''.

9. Ms Symon contended that the authorities have interpreted s 16(2) of the Tax Act so that it only prohibits the disclosure of information respecting the affairs of another person where the person can be identified. She submitted that s 16(2) had no application to a document once the identity of the person has been deleted. She said that her client was not asking for the names of any other taxpayers or for information which would enable the identity of any other taxpayers to be ascertained. She submitted that once the identity, or any means of identifying the other person is deleted, the information becomes general information only and is no longer ``information respecting the affairs of another person''.

10. As set out above Ms Symon made it clear that her client did not seek identifying details of other taxpayers. She did however say that her client was seeking release of the names of tax agents where that would not enable identification of the client. It seems to me that to provide access to the name of a tax agent as part of a document would be providing ``information respecting the affairs of another person'', namely information connecting the tax agent with the document. That would be information respecting the affairs of that tax agent. It may also be information respecting the affairs of the client.

11. There is no doubt that the policy or object of the Act is in favour of granting access. That is made clear by ss 3 and 61 of the Act. That approach is aided by s 22(1) which provides:

``(1) Where:

  • (a) an agency or Minister decides:
    • (i) not to grant a request for access to a document on the ground that it is an exempt document; or
    • (ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
  • (b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
    • (i) would not be an exempt document; and
    • (ii) would not disclose such information; and
  • (c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.''

12. Mr Bell submitted that because the whole subject of the documents claimed to be wholly exempt is ``information respecting the affairs of another person'', namely a third party taxpayer, it is inappropriate to delete identifying features and then release the remaining information. He said that all the information in the document is about the particular taxpayer and therefore covered by paragraph 16(2) of the Tax Act. His primary submission was that the character of the documents is not changed by editing out the names of the individuals. Counsel referred the Tribunal to a number of authorities the most relevant of which are
Re Mann and FC of T 87 ATC 2010,
Re The Fallon Group Pty Ltd and FC of T 95 ATC 2134 and
Collie v FC of T 97 ATC 2058; (1997) 45 ALD 556. Mr Bell acknowledged that there were comments in Re Mann, which he characterised as obiter which


ATC 2303

appeared to contradict his submission. He also acknowledged that his submission was contrary to the approach adopted in Re Fallon. But he argued that in Re Collie the Tribunal had adopted the correct approach to s 16(2).

13. The Tribunal in Re Mann gave careful consideration to s 38 of the Act and to s 16(2) of the Tax Act. It considered the meaning to be given to the words ``respecting'' and ``affairs'' and stated that they both had wide connotations. As to the word ``respecting'', the Tribunal referred to
The Trustees Executors & Agency Co. Ltd. v. Reilly (1941) V.L.R. 110 at p. 111 where Mann C.J. said:

``The words `in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer.''

14. The Tribunal concluded [87 ATC at 2012-2013]:

``6. It follows that, if the subject documents contain information relating even quite broadly to the personal, professional or business concerns of a person, then to that extent they must be found to be exempt. The applicant has emphasised on a number of occasions, and again in the written submissions referred to, that he does `not wish to know anything pertaining to the private taxation affairs of any other individual'. The restriction imposed by sec. 16(2) is not expressed to apply to `taxation affairs'. A person's affairs generally, having come into the knowledge of an officer, are protected. No doubt there are cases where information could be released without offending sec. 16(2). The long history of the publication of decisions by Taxation Boards of Review, now followed by this Tribunal, shows how, by the use of anonyms and obscurities, a transaction can be described without revealing who participated in it. Difficulty however arises where, even though a class of persons is involved and even though that class varies slightly in membership over a relevant period, the membership of the class in question is known to persons beyond the confines of the class.

7. The fact is that the class of persons here in question, namely the salaried specialists employed by the Capital Territory Health Commission (`the CTHC') and who were involved in the operation of the Private Practice Trust Fund (`the Fund'), would inevitably be well known to a number of persons involved in, or knowledgeable of, the public health area in the A.C.T., and the names of the members of the class would be equally well known. It follows that where information in the documents relates to the affairs of members of that class, disclosure of it would breach the provisions of sec. 16(2) of the ITAA. Any suppression, in the grant of access, of the names of the members of the class would be a gap that would be filled quite readily by reason of knowledge held by a section of the public, namely the involved persons mentioned above, about the existence of the class, about its activities, and about how it fitted in to health administration in the A.C.T. It is nothing to the point that that section of the public may not be large in relative terms. The fact is that it exists. Documents before us concerning the affairs of participating specialists include documents which name individual specialists or refer to them in such a way as to make them readily identifiable. Other documents identify the specialists concerned by reference to membership of the relatively small group (no more than 45-50) who participated in the Fund during its existence. Given that the names of the members of the class are known to some, the matter can then be tested by asking, as the respondent's submission said, the question: `Would a person know more about another person's affairs if the information was disclosed?' Such increase in knowledge would for instance flow if the information included what the `other' person earns, how he, she or it makes money, what are the person's relations with other persons or corporations, and what are the relations of such a corporation with its employees and the public.''

[emphasis added]

15. Ms Symon relied on the passage quoted above. She submitted that it is clear from that discussion that the Tribunal in Re Mann contemplated that documents could be released without offending s 16(2) ``by the use of anonyms and obscurities'' and deletions, so as to remove any matters which would identify, or


ATC 2304

enable identification of, the person respecting whose affairs the document contains information. Ms Symon said that once the identity of the person is removed from the information, it is no longer ``information respecting the affairs of another person''. Thus she submitted that s 16(2) does not prohibit the disclosure of information, so long as no other taxpayer is identifiable from the information.

16. Mr Bell did not dispute that the comments of the Tribunal in Re Mann can be understood to imply that if a document can be edited, so that it does not reveal the identity of the person respecting whose affairs the document contains information, then the release of the document is not prohibited by s 16(2) of the Tax Act or by s 38 of the Act. But he submitted that those comments were obiter because the Tribunal in Re Mann held that the documents in issue were totally exempt from release under the Act as they contained information respecting the affairs of other persons. The Tribunal in the final paragraph of its reasons said [87 ATC at 2014]:

``13. In the result we go back to the cardinal principle of Australian income tax law that the knowledge of a person's affairs gained by the ATO is sacrosanct, subject to carefully defined, albeit now very extensive, statutory exceptions. There appears to us to be no ground for a construction of the FOI Act that would lead us to intrude upon that principle.''

The decision under review was affirmed. The documents in issue were held to be exempt documents.

17. It is relevant to state that the Tribunal in Re Mann held that information disclosing that another person has been in communication with the Australian Taxation Office is itself, information respecting that person's affairs. It held further that s 16(2) may apply to legal discussions, policy decisions of the Commissioner or his officers, or interpretations of the Tax Act. The Tribunal said the question is simply whether the information in question relates to the affairs of another person [ paragraph 9]. The Tribunal commented at paragraph 10 [87 ATC at 2013]:

``... There are circumstances in which legal discussions, policy decisions or inter- pretations of the ITAA would have to be held to relate to a person's affairs, and circumstances where they would not. It all comes back to the particular information in the particular documents before us.''

18. It is interesting that the reasoning of the Tribunal in Re Mann contains passages of assistance to both parties in this matter. Mr Bell's submission relies on the first sentence of paragraph 6 [87 ATC at 2012]:

``6. It follows that, if the subject documents contain information relating even quite broadly to the personal, professional or business concerns of a person, then to that extent they must be found to be exempt.''

Ms Symon relied on a later passage in that same paragraph:

``... No doubt there are cases where information could be released without offending sec. 16(2). The long history of the publication of decisions by Taxation Boards of Review, now followed by this Tribunal, shows how, by the use of anonyms and obscurities, a transaction can be described without revealing who participated in it.''

19. There is no such ambiguity in the decision of the Tribunal in
Re The Fallon Group Pty Ltd and FC of T 95 ATC 2134. In that matter the Tribunal held that it was possible to give access to certain documents relating to sales tax without offending s 16(2) of the Tax Act by making:

``... such deletions that those copies would not permit readers to identify the persons to whose affairs the information contained therein relates.''

The issue was explained by the Tribunal at paragraph 104 on 95 ATC p 2148, as follows:

``Mr Robertson argued that the approach of the Tribunal in Mann's Case as just set out justified the suppression of all of the information presently under consideration on the basis that it related to the affairs of persons other than entrusted persons. Mr Grant, on the other hand, argued that, once deletions had been made from the documents of the names and file numbers of taxpayers and of the names of taxpayers' representatives, in accordance with his announcement at the outset of the hearing, then none of the remaining information could be said to relate to the affairs of persons other than entrusted persons.''

20. The Tribunal commented that the true position lay somewhere in between the two


ATC 2305

extremes. It said at paragraph 106 [95 ATC at 2148]:

``I accept, of course, that even though a person is not named in a document, that document's disclosure may disclose information which relates to the affairs of that person and, what is obviously essential for present purposes (although not actually expressed in the legislation), may also disclose that person's identity. Mann's Case provides an example of that phenomenon. However, directing myself to the terms of the specific documents presently under consideration and keeping in mind the obligation under which, as I have already said, I consider myself to be as a result of the terms of section 22 of the Act, I am satisfied that it is possible for me to give to Fallon access to copies of those documents with such deletions therefrom that those copies will not permit readers thereof to identify the persons to whose affairs the information contained in them relates.''

Although the Tribunal in Re Fallon said the true position lay somewhere between the two extremes, it seems to have accepted Mr Grant's submission that once all identifying material was deleted from documents ``then none of the remaining information could be said to relate to the affairs of [another person]''. It is not clear what the Tribunal meant when it said:

``I accept, of course, that even though a person is not named in a document, that document's disclosure may disclose information which relates to the affairs of that person...''

Was the Tribunal referring only to information providing a means of identifying a person other than the person's name? Or was the Tribunal stating that in some circumstances material may be ``information respecting the affairs of another person'', even where the person is not identifiable in any way from that information?

21. That latter interpretation was given to s 16(2) by the Tribunal in Collie v FC of T 97 ATC 2058; (1997) 45 ALD 556, on which Mr Bell relied. Deputy President Forgie in Re Collie rejected the approach of the Tribunal in Re Mann, in so far as it seems to support the view that once identifying details are deleted from a document it no longer contains ``information respecting the affairs of another person''. Deputy President Forgie said [97 ATC at 2065]:

``... 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 be 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.''

22. I consider that to be the correct approach to s 16(2) of the Tax Act. The Tribunal in Re Mann pointed out [87 ATC at 2012]:

``... The restriction imposed by s 16(2) is not expressed to apply to `taxation affairs'. A person's affairs generally, having come to the knowledge of an officer, are protected.''

Similarly the restriction imposed by s 16(2) is not expressed to apply to ``identifying information'', or to ``information respecting an identifiable person''. It applies to ``any information respecting the affairs of another person''.

23. In submitting that the Tribunal should prefer the approach in Collie v FC of T to the obiter comments in Re Mann, or to the approach of the Tribunal in Re Fallon, Mr Bell referred to
Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1. In that case Dixon CJ said that a very wide meaning should be given to the words contained in s 16(1) and (2) of the Income Tax and Social Services Contribution Act 1936-1952. Those sub- sections used the same language as that now in s 16(2) of the Tax Act. They provided:

``(1.) For the purposes of this section, `officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax.

(2.) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him.''


ATC 2306

24. Mr Bell also referred to
Consolidated Press Holding Ltd & Ors v FC of T 95 ATC 4231; (1995) 57 FCR 348. Lockhart J there said of the role of s 16 of the Tax Act, at ATC p 4233; FCR pp 350-351:

``Section 16 is designed to ensure that officers of the Australian Taxation Office maintain secrecy regarding the affairs of taxpayers. The section reflects the intent of the Parliament to balance two competing areas of public interest: on the one hand the interests of taxpayers in having the privacy of their financial information respected; and on the other hand the facilitation of the administration of governmental business. Taxpayers are responsible for reporting their income and outgoings. It is essential if the confidence of taxpayers is to be maintained that private information concerning their finances and affairs will not be disclosed except in the special circumstances mentioned in the various sub-sections of s 16.''

His Honour quoted a passage from
Gamini v Commissioner of Income Tax, Colombo [1952] AC 571 at 579. The Judicial Committee of the Privy Council described the duty of taxation officers to observe secrecy as:

``a very necessary rule of conduct to be observed by the officials concerned, since it is of the highest importance that the affairs of an individual and identifiable income taxpayer should not be disclosed... to anyone outside... their Lordships would strongly deprecate the production or use of such a document if it did in effect disclose information about other identified or identifiable taxpayers...''

That passage does appear to support the approach of the Tribunal in Re Mann and in Re Fallon, that the mischief s 16(2) is designed to prevent the disclosure of ``information about other identified or identifiable taxpayers''. It is surprising that little attention has been given in decisions so far to information respecting the affairs of taxpayers, even where their identity would not be disclosed. That issue must be addressed in this matter.

25. Mr Bell submitted that the text of s 16(2) did not permit the construction contended for by the applicant. He said, at trans. pp 28 and 29:

``There is nothing in it that restricts it to identity. To repeat the key words, `any information respecting the affairs of another person'. So the question asked by section 16(2) is whether the information, and I emphasise `information' not document, is respecting the affairs of another person. Information may be documentary in character. It may be held in one's mind so as not to be documentary. It can be recorded, in other words, in a number of ways and a document may be information in itself.''

26. Similarly, in Collie v FC of T the Tribunal, in stating that it had ``some reservation'' in following the approach outlined in Re Mann, pointed out that the words of s 16(2) were crucial. The express words of s 16(2) do not require that a person be able to be identified from information before a tax officer is under an obligation not to reveal that information. It is enough that the information can be identified as ``information respecting the affairs of another person''.

27. There is High Court authority for the view that the words of s 16(2) should be widely interpreted. There is no reason to limit those words. No doubt a document relevant to a person's taxation affairs, which allows a person to be identified would contain information respecting that person's affairs. But in my view the deletion of identifying material does not necessarily remove from the document all information respecting the other person's affairs. A document may contain detailed information respecting a person's affairs which it would be inappropriate for a tax officer to divulge or communicate to another person, even without identifying the person whose affairs are described. That situation becomes clearer when a specific document is considered.

28. An example of that situation is document 105 which is a Private ruling made under Part IVAAA of the Taxation Administration Act 1953 (``the Administration Act''). That Part provides for the making by the Commissioner of Public rulings and Private rulings. Public rulings are, as the name indicates, relevant to the public. Notice of them is published in the Government Gazette and they set out the Commissioner's opinion on a tax issue for the benefit of all affected taxpayers. In contrast a Private ruling is in respect of the affairs of the person who requests the ruling only.

29. Sections 14ZAF, 14ZAG and 14ZAR of the Administration Act provide:


ATC 2307

``14ZAF Application for private ruling about own tax

A person may apply to the Commissioner for a ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to the person in respect of a year of income in relation to an arrangement.

14ZAG Application for private ruling about another's tax

A person may, with the written consent of another person, apply to the Commissioner for a ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to the other person in respect of a year of income in relation to an arrangement.

...

14ZAR Making of private rulings

(1) The Commissioner makes a private ruling by:

  • (a) preparing a written notice of it; and
  • (b) serving the notice on the applicant.

(2) If 2 or more private rulings sought by an applicant relate to an arrangement or related arrangements, then one notice may be given of all or some of them.

(3) For the purposes of subsection (2), a private ruling made under section 14ZAP is taken to have been sought by its applicant.

(4) A private ruling must state that it is a private ruling for the purposes of this Part.''

31. The description of document 105 in the Schedule to the affidavit of Ms Farrell is as follows:

``Private ruling given in relation to an unrelated third party taxpayer.

This document is fully exempt as it is a ruling for a specific year of income for an individual unrelated taxpayer concerning the application of Part IVA to certain arrangements of that taxpayer. The ruling was provided to the third party taxpayer in the context of negotiations between the ATO and the taxpayer and no part of it is able to be released.''

Having inspected document 105 I am satisfied that is an apt description. A private ruling, by its nature is information respecting the affairs of a person.

32. In my opinion the whole of a document consisting of a Private ruling made by the Commissioner under Part IVAAA of the Administration Act contains ``information respecting the affairs of another person'' acquired by a taxation officer in the course of his employment. Accordingly s 16(2) prohibits that information being divulged or communicated to any person. To release the whole or any part of that document would involve divulging or communicating, to the person to whom the document was released, information respecting the affairs of the person in respect of whom the private ruling was given. Document 105 is exempt under s 38(1) and (2) of the Act.

33. I turn now to the other documents in dispute. Ms Farrell in her affidavit, claimed that documents 18, 93, 94, as well as document 105, were exempt in full pursuant to s 38(1)(a) and (b) of the Act. Those documents are listed and described in Schedule A to her affidavit. The description of document 18 is as follows:

``Copy of letter from ATO to an unrelated taxpayer about conduct of audit (with annotations). This document has no information regarding FBG or the conduct of a Taxation Strategy Review. The third party taxpayer is an unrelated public company and the letter refers to certain problems experienced by the ATO in accessing documents and information from that third party taxpayer. The annotations show which tax officer provided the copy letter and give no substantive information.

The letter was provided to the third party taxpayer by the ATO and details confidential occurrences between the ATO and the taxpayer regarding the exchange of information during that audit. It is exempt in full pursuant to section 38.''

34. I have inspected that letter. I am satisfied that the release of that document would divulge or communicate to any person to whom the information became available, information respecting the affairs of another person, being a public company unrelated to Fosters Brewing Group. In my opinion the whole of the letter relates to the affairs of the unrelated public company. The release of that letter, even if all names were deleted, would still be the release


ATC 2308

of information respecting the affairs of that company. Mr Bell in argument suggested that document 18 may be able to be edited to delete information to prevent the identity of the taxpayer being disclosed, so as to enable release of the remainder of the document. In my view the whole document is exempt under s 38(1) and (2) of the Act. I therefore uphold the exemption claimed in respect of document 18.

35. The description in the Schedule of document 93 is as follows:

``Copy of letter, on behalf of unrelated taxpayer, on application of s. 46 rebate.

This document is exempt in full because it was generated by a consultancy on behalf of its client (the third party taxpayer) and addressed to the ATO. It deals with issues relating specifically to that taxpayer and cannot be released. This document also relates to document 94 which is exempt for the same reasons.''

As is stated this document was generated by a taxation consultant on behalf of a client. It is a piece of advocacy on behalf of that client. It is an example of the sort of document referred to by the Tribunal in Re Mann when it said at 87 ATC p 2013:

``... There are circumstances in which legal discussions, policy decisions or inter- pretations of the ITAA would have to be held to relate to a person's affairs, and circumstances where they would not. It all comes back to the particular information in the particular documents before us.''

36. Most of the document is in the nature of a submission as to two documents which are in the public arena. Mr Bell suggested that it may be possible that document 93 could be released with deletions. I agree that some parts of the document could be deleted to allow release of the remainder. The necessary deletions include the name of the client and the name of the consultant and the names of any persons named in the document. In my opinion it is also necessary to delete the actual submission, based on the two documents, made by the consultant on behalf of its client, as that submission is a submission respecting the affairs of the client. In my view the parts of the document which would need to be deleted so that access can be granted under s 22 of the Act are:

  • (i) The whole of the document above the number 1 on page 1, except for the date and addressee of the letter.
  • (ii) The whole of pages 2, 3 and 4 of the document.

The part of the first page above the number 1 would enable identification of the taxpayer and its consultant. Pages 2, 3 and 4 of the document are a submission respecting the affairs of the consultancy's client, made by a professional engaged to make that submission in respect of the affairs of the client.

37. The next document claimed to be fully exempt is document 94. The description in the Schedule attached to Ms Farrell's affidavit is as follows:

``This document is related to document 93 which is also exempt in full for the same reasons.

The document was generated by a financial consultancy on behalf of its client (an unrelated third party taxpayer). It deals with concerns relating to section 46 rebates in the context of that third party taxpayer's affairs and cannot be released in an edited form as the third party taxpayer may be identifiable from the remainder of the document.''

38. Having inspected document 94 it is my opinion that the last two paragraphs on page 2 do not fit that description. They contain more general information. I consider that they could be released with the deletion of the name of the person mentioned in the last paragraph. The divulging of that name might enable identification of the client about whom the advice was provided. The first sentence on page 3 of the letter could also be released. The rest of the letter is exempt as its release would divulge ``information respecting the affairs of another person''. The names of the sender of the letter and of the person to whom a copy was sent must of course also be deleted. It is questionable whether the applicant will consider it worth having the document with the proposed deletions, but s 22 requires that the document be released with deletions where that is possible and practicable. I will therefore decide that document 94 be released with the deletion of:

  • (i) The whole of the first page, save the date and the addressee.

    ATC 2309

  • (ii) The first two paragraphs on page 2.
  • (iii) The name in the last paragraph on page 2.
  • (iv) The whole of page 3 except the first sentence.

39. There are two documents claimed by the respondent to be partially exempt. They have been released with deletions. The first such document is document 17. The description given in the Schedule to Ms Farrell's affidavit is as follows:

``Copy of document entitled `Record of Documents Removed from File'. It relates to audit documents removed from a file of a third party taxpayer, completely unrelated to this request as it does not concern either Fosters Brewing Group or the Taxation Strategy Review.

It has, however, been released in an edited form with deletions of any references to the third party taxpayer, its employees or representatives.''

40. I have inspected a copy of that document with the deletions highlighted. I am satisfied that the information which has been deleted from that document, is information respecting the affairs of another person. Accordingly s 16(2) of the Tax Act prohibits the giving of access to those deleted parts as to do so, would be to divulge or communicate information respecting the affairs of another person. The deletions are required so that the copy document is not an exempt document.

41. The final document in dispute is document 78. The description of that document in the Schedule to Ms Farrell's affidavit is as follows:

``Note to A/g Senior Assistant Comm- issioner on request by tax agent for advice concerning unrelated third party taxpayer.

This document was generated as part of the ATO's consideration of a response to be given to the third party taxpayer and it deals specifically with the application of section 80G to the circumstances of that third party taxpayer. Deletions have been made to protect the identity of the third party taxpayer but otherwise the document has been released in full.''

The copy I have inspected has the deletions highlighted. I do not consider that any further parts of this document can be released. I am satisfied that the information claimed to be exempt under the Act is ``information respecting the affairs of another person''. Were those deletions not made the document would be an exempt document.

42. It is apparent from the deletions I consider are required to be made to documents 93 and 94, that I agree with the respondent that the disclosure of the name of a tax agent is information respecting the affairs of either the taxpayer or the tax agent, both of whom are covered by the words of s 16(1) and (2). The section does not state that the protection is only for taxpayers. Sometimes the release of the name of a tax consultant, and of the substance of the matters discussed in a document, may allow informed persons, as in Re Mann, to identify a taxpayer. But even where that is not so, I consider that it is information respecting the affairs of a tax consultant, that that consultant has written to the Commissioner on a certain topic. The prohibition in s 16(2) covers the release of that information as well as of the information that the consultant wrote to the Commissioner on behalf of a particular identified taxpayer.

43. Ms Farrell's affidavit relied not only on s 38 of the Act but also on s 40(1)(a) and (d). Ms Symon (at trans. p 7) objected to the fact that the applicant had not been given notice of the respondent's reliance on s 40 until Ms Farrell's affidavit was received the day before the hearing. Mr Bell (at trans. p 10) referred to the claim under s 40 as a subsidiary claim. That section, so far as relevant, provides:

``(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

  • (a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
  • ...
  • (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or''

43. Because of the conclusion I have reached as to s 38 of the Act, it is not necessary for me to consider the claim based on s 40 of the Act. Because that claim was raised so late I was not assisted with argument and reference to the authorities in the same way as I was in relation


ATC 2310

to s 38. I therefore propose not to deal with that alternative basis for exemption.

44. The decision under review will be varied to provide that access be given to documents 93 and 94 with deletions as follows:

Document 93

  • (i) The whole of the document above the number 1 on page 1, except for the date and addressee of the letter.
  • (ii) The whole of pages 2, 3 and 4 of the document.

Document 94

  • (i) The whole of the first page save the date and the addressee.
  • (ii) The first two paragraphs on page 2.
  • (iii) The name in the last paragraph on page 2.
  • (iv) The whole of page 3 except the first sentence.

In all other respects the decision under review will be affirmed


This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.