Central Policy
John Sharpe
Corporate Governance
4/52
100 Parliament Street
London SW1A 2BQ
Mr Frank Mclaughlin
by email to:
Tel
'[FOI #13377 email]'
Fax
020 7147 0666
Email
Date
11 August 2009
www.hmrc.gov.uk
Our Ref
FOI 1699/09
Your Ref
________
Dear Mr McLaughlin
Freedom of Information Act 2000 – Request for Review
Introduction Thank you for your email dated 14 July 2009, in which you ask for an internal review of your
Freedom of Information Act (FOIA) request. In your email you contend that HMRC has
incorrectly withheld the requested information and you do not accept the grounds cited by
HMRC for refusing to disclose. I address these points in my review.
Your request
In your e-mail of 15th June 2009 you requested the following information under the FOIA:
“With reference to the Amendment to the Memorandum of Understanding on Royal Taxation
that the Chancellor announced to the House of Commons on 22nd April 2009, please
disclose how this proposal came to be initiated in HMRC.”
Our response
Mrs Chance’s letter dated 13 July 2009 informed you that the requested information was
being withheld under section 44(1)(a) of the FOIA, which exempts information if its
disclosure is prohibited by any enactment. She explained that the relevant enactment was
the Commissioners for Revenue and Customs Act (CRCA) 2005. She advised you that,
under section 23 of the CRCA, information held by HMRC in connection with one of our
functions is exempt from disclosure under FOIA, if it identifies a person or enables their
Information is available in large print, audio tape and Braille formats.
Type Talk service prefix number – 18001
identity to be deduced. She confirmed that section 44 is an absolute exemption under the
FOIA.
Internal Review
I have been asked to review your FOIA request and its handling. The purpose of the internal
review is to provide a fair and thorough review of decisions made pursuant to the FOIA.
I note that you made your request on 15 June 2009, and HMRC provided its response on 13
July 2009. This is within the statutory deadline as required by section 10(1) of the FOIA. I
note that the response also set out HMRC’s review procedure and your right to complain to
the Information Commissioner, as required by section 17(7) of the FOIA.
I now turn to the particular points of your review request. Whilst you accept that HMRC has
a duty to withhold information relating to its operational work in dealing with its customers,
you consider that the section 44 exemption should not apply to initiatives which change the
legal framework. You consider that your request is effectively a request for legislative policy
information and therefore the exemption should not apply.
You are correct to say that there is a distinction between information which HMRC holds in
relation to identifiable customers and information about the department itself; its strategies,
policies, performance etc. The CRCA makes this distinction clear in section 23.
Section 18(1) of the CRCA provides that HMRC officials may not disclose information which
is held by HMRC in connection with a function of the Revenue and Customs. Section
23(1)(a) and (b) states that information held in connection with a function of HMRC, which
relates to identifiable persons, is exempt from disclosure under the FOIA.. But section 23(2)
makes it clear that information which does not relate to identifiable persons is discloseable
under the FOIA. The clear intention of Parliament was to remove information we hold about
our customers from the right of access under FOIA, as is shown by the statement made by
the then Paymaster General, Dawn Primarolo, on the introduction of section 23 CRCA,
which followed concerns expressed during the passage of the Bill through Parliament, that
information we hold about our customers might be disclosable under FOIA. . She said:-
“Taxpayer confidentiality remains of paramount importance in the new department. As I have
said, for that reason, the Bill ensures that information connected with a taxpayer is not
discloseable under the Freedom of Information Act. That was always the intention, but the
new clause puts that beyond doubt—that information will not be discloseable under that Act.
However, much of the information that Her Majesty's Revenue and Customs will hold is not
taxpayer confidential—for example, information about the department's internal processes.
The new clause clarifies that such information will be subject to the Freedom of Information
Act. Therefore, if a person requests information that is not taxpayer confidential, that request
will be considered under the Act.”
Generally speaking, legislative policy information held by HMRC is not covered by the s44
exemption and is potentially discloseable under the FOIA. However, the specific policy you
are asking about relates solely to identifiable persons, namely members of the Royal Family.
Even if the specific names of the individuals were redacted from the information we hold, the
identities could be deduced because the names of the members of the Royal Family are in
the public domain. I am satisfied, therefore, that Mrs Chance was right to withhold the
requested information falling within the description of your request.
Appeal Process As previously advised, if you are not content with the outcome of this review, you may apply
directly to the Information Commissioner, who can be contacted at:
The Information Commissioners Office
Wycliffe House Water lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
John Sharpe
Annex
Freedom of Information Act 2000
Section 44
(1) Information is exempt information if its disclosure (otherwise than under this Act) by the
Public Authority holding it-
a) is prohibited by or under any enactment.
Commissioners for Revenue and Customs Act (CRCA) 2005
Section 18 Confidentiality
(1) Revenue and Customs officials may not disclose information which is held by the
Revenue and Customs in connection with a function of the Revenue and Customs.
Section 23 Freedom of information
(1) Revenue and customs information relating to a person, the disclosure of which is
prohibited by section 18(1), is exempt information by virtue of section 44(1)(a) of the
Freedom of Information Act 2000 (c. 36) (prohibitions on disclosure) if its disclosure—
(a) would specify the identity of the person to whom the information relates, or
(b) would enable the identity of such a person to be deduced.
(2) Except as specified in subsection (1), information the disclosure of which is prohibited by
section 18(1) is not exempt information for the purposes of section 44(1)(a) of the Freedom
of Information Act 2000.
