The Privacy Commissioner has affirmed an ATO decision to refuse access to documents concerning the rights to future income rules that was requested under the Freedom of Information Act 1982 (the FOI Act).

On 28 February 2013, the applicant applied to the ATO for access to:

…for the period of 3 June 2010 until 22 February 2013, photocopies of the following additional documents:

Correspondence and/or any other documents recording such correspondence, including but not limited to records (written or electronic) of phone calls, between the Commissioner of Taxation and the Commonwealth Department of the Treasury and Finance and between the Commissioner of Taxation and Board of Taxation [regarding] the Rights to Future Income Provisions, other than such documents which specifically refer to:

  • Private rulings made in relation to the Rights to Future Income Provisions pursuant to the Amendment Act; and
  • Private Rulings Application.”

On 14 June 2013, the ATO advised that 5 documents (comprising a chain of emails) had been identified within the scope of the applicant’s request. Each of the documents was exempt in full under ss 47C (deliberative processes exemption) and 47E(d) (certain operations of agencies exemption) of the FOI Act. The applicant sought Information Commissioner review of the ATO’s decision under s 54L of the FOI Act.

The ATO submitted, and the Information Commissioner accepted, that the emails in question, and the meeting they relate to, were early discussions regarding a proposed change to tax legislation. The emails in issue disclosed a diverse range of views from individual ATO officers on the issues subject to discussion. The Commissioner considered the discussions were deliberative and was satisfied that disclosure would make it more difficult for the ATO to have open discussions, such as those documented in these, emails in the future. Disclosure could reasonably be expected to prejudice both the deliberative processes themselves and potentially also future deliberations.

The Information Commissioner considered that giving the applicant access to the documents would, on balance, be contrary to the public interest. Therefore, under s 55K of the FOI Act, he affirmed the ATO’s decision to refuse access.

(‘BJ’ and Australian Taxation Office [2014] AICmr 22, Australian Information Commissioner, Privacy Commissioner, Timothy Pilgrim, 26 February 2014.)

[LTN 43, 5/3/14]