Dear HM Revenue and Customs,

Please provide all emails from and to Jim Harra which contain (in the subject line or in the body of the email) or reference (in the subject line or in the body of the email) one or more of the following keywords -

LCAG (or L.C.A.G. or lcag)
Loan Charge Action Group (or loan charge action group)
Campaigners (or campaigners)
Activists (or activists)
Twitter (or twitter)
Tweet (or tweet)

Please restrict the supply of this information to the year 2019 (01 January 2019 to 31 December 2019 inclusive). This will require a search of one individual mailbox (belonging to Jim Harra), with clear instruction on the keyword search criteria as outlined above.

It should be noted that the searches undertaken for Twitter (or twitter) and Tweet (or tweet) are only where these are on the subject of, or related to, the Loan Charge and/or Disguised Remuneration (or DR), or LCAG (or variations as above), or Loan Charge Action Group (or variations as above) or Campaigners (or campaigners) or Activists (or activists).

Yours faithfully,

S Packham

Dear FOI Team,

Thank you for your very prompt reply and confirming that you hold the information sought.

The numbers which you have quoted in your response are sufficiently noteworthy to be shared more widely and will come as no small surprise to all parties seeking information from HMRC on the subject of the Loan Charge.

Having carefully read and digested this reply, I would firstly like to seek clarification on the leading set of statistics which you described. You stated "In responding to your request, HMRC conducted searches of relevant email records for the terms “campaigners”, “activists”, “twitter”, and “tweet”. The results of these searches yielded in excess of 6,500 results. To narrow this down, the results were cross-referenced with the terms “disguised remuneration” and “loan charge”. This cross-referencing yielded in excess of 2,500 results."

It is noted that this initial set of keyword searches has - for some reason best known to yourselves - excluded LCAG (or variations as per the original request), or Loan Charge Action Group (or variations as per the original request) in combination with the above. It is therefore quite probable that a search for the terms “campaigners”, “activists”, “twitter”, and “tweet” (which collectively produced in excess of 6,500 results), when cross-referenced - and 'narrowed down' - with LCAG or Loan Charge Action Group instead, would likely produce a much lower volume of emails than when cross-referenced with with the terms “disguised remuneration” and “loan charge”, which you say produced in excess of 2,500 results. As the terms “disguised remuneration” and “loan charge” have been used as keyword searches on numerous previous occasions, for numerous previous FOI requests, it is clear from those prior disclosures that HMRC hold a vast amount of emails which include those terms. What has not previously been established, as this request seeks to address, is how many emails within Jim Harra's mailbox are held containing a reference to LCAG or the Loan Charge Action Group - either in isolation, or in combination with the other keyword search terms listed.

Please could you therefore confirm -
a) What number of emails (for the date range provided) result from a search for the terms “campaigners”, “activists”, “twitter”, and “tweet”, when these are cross-referenced and narrowed down with LCAG or Loan Charge Action Group instead of “disguised remuneration” and “loan charge”?
b) That (for the date range provided) the 'searches of relevant email records' which 'identified in excess of 1,500 email chains' relate solely, and exclusively to the mailbox (i.e. both sent and received) of Jim Harra and no other individual?

You quote both section 12(1) and section 14(1) in your reply. With regard to section 12(1), you indicate that I may want to narrow the scope of this part of my request by being more specific about the information I particularly wish to obtain, including any dates or period of time relevant to the information required. Once I have the answers to the two questions above, that may indeed be possible and I would politely request that you supply this information at your earliest convenience. What would be very useful is, for the year 2019, a monthly breakdown of those numbers - in summary, the answer to question (a) above for January 2019, February 2019, March 2019 etc. to the end of that year and, for question (b), if the 1,500+ emails are indeed exclusive to Jim Harra's mailbox, how many were there for January 2019, February 2019, March 2019 etc. to the end of that year?

The above request will help enormously to identify where my request could potentially be narrowed down to help alleviate any burden on the authority, so I would be extremely appreciative of your clarification and assistance in this regard - thank you in advance. It is also explained by the ICO that the staff time taken, or likely to be taken, in removing any exempt information in order to leave the information that is to be disclosed, often referred to as ‘redaction’, cannot be included as part of the costs of extracting the requested information.

Progressing to section 14(1), you include a summary of points that you state are covered in the Commissioner's guidance on vexatious requests, where these would impose a 'grossly oppressive burden' but are not covered by section 12 cost limits, when -
The requester has asked for a substantial volume of information and
The authority has real concerns about potentially exempt information and
Any potentially exempt information cannot easily be isolated because it is scattered throughout the requested material.

The exact wording from the Commissioner's guidance which you quoted is actually as follows -
The requester has asked for a substantial volume of information AND
The authority has real concerns about potentially exempt information, which it will be able to substantiate if asked to do so by the ICO AND
Any potentially exempt information cannot easily be isolated because it is scattered throughout the requested material.

It appears to be of some significance that the phrase 'which it will be able to substantiate if asked to do so by the ICO' was excluded from your reply. The ICO, as stated in their guidance, consider there to be a high threshold for refusing a request on such grounds, and in the event that a refusal should lead the requester to complain to the ICO, they would expect the authority to provide them with clear evidence to substantiate its claim that the request is grossly oppressive, with any requests which are referred to the Commissioner being considered on the individual circumstances of each case. On that basis, could you please offer an explanation as to why that particular section was deliberately excluded?

I have also sought advice and information from the Information Commissioner's Office document 'Dealing with vexatious requests (section 14)' and would serve a number of points in return which I feel fully justify my request, and which I will attempt to outline here.

"Where an authority believes that complying with the request will impose a grossly oppressive burden, it is good practice to talk to the requester before claiming section 14(1), to see if they are willing to submit a less burdensome request."
As stated previously, if you would be kind enough to answer the questions I have raised earlier, this will hopefully enable me to submit a revised request which the authority will consider less burdensome.

"We would advise any public authority that is considering the application of section 14(1) to take a step back and review the situation before making a final decision. This is because refusing a request as vexatious is particularly likely to elicit a complaint from the requester and may serve to escalate any pre-existing disputes between the respective parties."
As this is my first Freedom of Information request to the authority, it is clear that there are not any pre-existing disputes. I am simply attempting to gather evidence and information from the authority on the subject matter within my request.

"Public authorities must keep in mind that meeting their underlying commitment to transparency and openness may involve absorbing a certain level of disruption and annoyance."
I am uncertain as to what the authority might deem 'a certain level' in this instance, but if there is an opportunity to narrow the request, then I am willing to try to help. The authority, by accepting that the absorption of a certain level of disruption and annoyance is to be expected, will further aid that process.

Assessing purpose and value
"The Act is generally considered to be applicant blind, and public authorities cannot insist on knowing why an applicant wants information before dealing with a request. However, this doesn’t mean that an authority can’t take into account the wider context in which the request is made and any evidence the applicant is willing to volunteer about the purpose behind their request."
The Loan Charge Action Group is an organisation which supports people facing the Loan Charge. Its members seek the information and evidence which is being used by HMRC in its pursuit of these individuals and companies. There have been claims from HMRC - at the most senior level - that campaigners have issued 'misinformation' on the subject of the Loan Charge. Amongst other concerns, this request seeks evidence of those claims which the authority feel justified in publicly broadcasting.

"The authority should therefore consider any comments the applicant might have made about the purpose behind their request, and any wider value or public interest in making the requested information publicly available."
As stated in the preceding paragraph, there is intense and unwavering public interest in the debate on the Loan Charge, not just in the public domain but in both Houses of Parliament, the wider tax profession and across many news outlets. This request seeks to provide further evidence and fact to help fully inform that important debate, especially given the tens of thousands of individuals and their families who remain affected.

"Most requesters will have some serious purpose behind their request, and it will be rare that a public authority will be able to produce evidence that their only motivation is to cause disruption or annoyance. As the Upper Tribunal in Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013) observed: “public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident.”
I hope that my explanations are sufficient to provide the authority with both value and serious purpose - I am simply trying to help reveal the many truths which remain concealed on this subject.

Considering whether the purpose and value justifies the impact on the public authority
"Serious purpose and value will often be the strongest argument in favour of the requester when a public authority is deliberating whether to refuse a request under section 14(1)."
As already summarised, my reasoning is sound and clear around purpose and value.

"The key question to consider is whether the purpose and value of the request provides sufficient grounds to justify the distress, disruption or irritation that would be incurred by complying with that request. This should be judged as objectively as possible. In other words, would a reasonable person think that the purpose and value are enough to justify the impact on the authority."
A reasonable person would surely see the merit in the disclosure of the information requested, concerning (as it does) the ability of many thousands of people to be able to properly defend themselves against false accusations and demands. By refusing such a request, would a reasonable person not assume that the authority might perhaps be trying to set aside that necessary objectivity in order to evade accountability and to avoid a justifiable public scrutiny?

Taking into account context and history
"The context and history in which a request is made will often be a major factor in determining whether the request is vexatious, and the public authority will need to consider the wider circumstances surrounding the request before making a decision as to whether section 14(1) applies."
The Loan Charge received Royal Assent in November 2017. Since that time (and even before), hundreds of MPs and peers have called for the government to change course and to look again at a policy which has encountered fierce resistance and deepening opposition from many different quarters - including its own party's representatives. After almost four years of attritional debate between the authority and the wider community of MPs, peers, tax barristers, professional advisers and financial journalists, it would seem high time for the authority to finally share the evidence which accuses those opponents of this policy (including the Loan Charge Action Group) of spreading 'misinformation' on the subject.

"In practice this means taking into account factors such as (a) other requests made by the requester to that public authority (whether complied with or refused), (b) the number and subject matter of those requests, (c) any other previous dealings between the authority and the requester and, (d) assessing whether these weaken or support the argument that the request is vexatious. However, the context and history may equally weaken the argument that a request is vexatious. For example, it might indicate that the requester had a reasonable justification for their making their request, and that because of this the public authority should accept more of a burden or detrimental impact than might otherwise be the case."
I have made no other requests to the authority, so the number and subject matter are therefore of no consideration in the context of this request. I would respectfully suggest that this weakens any argument that the request is vexatious, especially if I am able to narrow the scope once in early receipt of the answers to my previous questions.

The ICO document expressly states that where "Serious failings at the authority have been widely publicised by the media, giving the requester genuine grounds for concern about the organisation’s actions, the authority should be mindful to take into account the extent to which oversights on its own part might have contributed to that request being generated."
This point clearly needs no further explanation, or elaboration, as the ongoing public debate has proven, but I trust that I have offered some tangible commentary to help any future ICO review should their own deliberations on this request ultimately be required.

"It is also important to bear in mind that the bar for refusing a request as ‘grossly oppressive’ under section 14(1) is likely to be much higher than for a section 12 refusal. It is therefore in a public authority’s own interests to apply section 12 rather than section 14, in any case where a request would exceed the cost limit."
As already emphasised, I will attempt to comply with the authority's suggestion of narrowing the scope once I have answers to my follow-up questions.

Finally, in Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013), Judge Wikeley recognised that the Upper Tribunal in Wise v The Information Commissioner (GIA/1871/2011) had identified proportionality as the common theme underpinning section 14(1) and he made particular reference to its comment that; "Inherent in the policy behind section 14(1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request, and the time and other resources that would be needed to provide it."

The ICO document continues - "It may be helpful to view this as a balancing exercise where the serious purpose and value of the request are weighed against the detrimental effect on the authority, as summarised below."

1. Serious purpose. 2. Requester’s aims and legitimate motivation. 3. Wider public interest and objective value.
vs
4. Detrimental impact on the public authority. 5. Evidence that the requester is abusing the right of access to information.

I believe that I have explained, substantiated and evidenced points 1, 2 and 3. With point 4, I have offered to lessen any detrimental impact on the public authority if the authority can help me to do so by answering a few simple questions. With point 5, I would reject any claim that I am abusing the right of access to information, and make a public call here for any evidence which the authority might feel they hold regarding that point.

Yours sincerely,

S Packham

Dear FOI Team,

Thank you for confirming receipt of my communication dated 07 October, and also following up with a new reference number.

As per the statutory timeframe, I will anticipate a response by (no later than) 04 November.

Yours sincerely,

S Packham

Dear FOI Team,

Many thanks for your timely reply and also your apologies for the administrative error which caused the omission in your original response.

The provision of the analysis is also much appreciated - thank you also for supplying this in monthly form for the year 2019.

Based on this information, I would now like to narrow the scope of my request for both the date range and the search terms, which I trust will help the authority - whilst accepting that the absorption of a certain level of disruption and annoyance is to be expected - to comply.

You have also stated in your reply that 'to provide the number of emails where your requested search terms appear with reference to each other would still require the manual review of individual emails in order to confirm the context'. I therefore propose to exclude from this revised submission those prior combinations of search terms, which will clearly obviate the need for any manual review of individual emails in order to confirm that context, and thereby significantly reduce the time any analysis should take.

On that basis, may I therefore request the release of the following emails/email chains -

From 'sent' items', with search term LCAG (01/02/2019 - 28/02/2019) - 2 instances
From 'sent' items', with search term LCAG (01/03/2019 - 31/03/2019) - 2 instances
From 'sent' items', with search term LCAG (01/06/2019 - 30/06/2019) - 1 instance
From 'sent' items', with search term LCAG (01/09/2019 - 30/09/2019) - 1 instance

From 'received' items', with search term LCAG (01/08/2019 - 31/08/2019) - 64 instances
From 'received' items', with search term LCAG (01/09/2019 - 30/09/2019) - 38 instances
From 'received' items', with search term LCAG (01/10/2019 - 31/10/2019) - 19 instances
From 'received' items', with search term Loan Charge Action Group (01/08/2019 - 31/08/2019) - 126 instances
From 'received' items', with search term Loan Charge Action Group (01/09/2019 - 30/09/2019) - 118 instances
From 'received' items', with search term Loan Charge Action Group (01/10/2019 - 31/10/2019) - 132 instances

As you have already confirmed, the actual numbers provided in the annex are those 'instances where a combination of the terms appear within a single email chain'. Without any requirement for the authority to now review the emails to contextualise any previously requested combination of search terms, this should now be a much more straightforward exercise. From your disclosure that the figures represented in the annexed chart are the numbers of instances and not the number of emails, it is considered as self-evident that the number of emails will therefore be a lesser number, which again should help the authority to fully comply with this more reasonable and narrowed request. Other than the names of any Senior Civil Service (SCS) grade personnel, my request does not seek the provision of any third-party personal data, so redaction in those cases (e.g. under s40(2)) is obviously considered acceptable and expected as per the FOI guidelines.

In this latest reply, you also state that HMRC's response to my request 'provided a summary of ICO guidance rather than quoting it directly. The referenced guidance is part of a series, which goes into more detail than that for members of the public, to help public authorities to fully understand their obligations and promote good practice'. My understanding is that the ICO guidance, based on the various different sections of the FOIA and published on their own website, is the only repository from which this information can be sourced. From your reply, it would appear that you have access to separate guidance which members of the public are unable to see in detail - is that correct? It still does not seem that this would necessarily explain why the line 'which it will be able to substantiate if asked to do so by the ICO' was excluded from your original reply, but if you believe that it does and can provide the relevant evidence of that separate guidance with the summary wording as supplied in that response, I would be very interested to see it and would be most grateful for your co-operation in providing such detail and information, so that I can be better informed for any future requests.

You also confirmed why the department considered that to comply with my original request would pose an unreasonable burden, stating 'HMRC’s response made it clear that the application of section 14(1) to this part of your request was based purely upon the burden it would impose'. I hope that the numerous entries from within the ICO guidance on section 14, which I extracted and referenced in my follow-up message, will now be considered by the authority in the context of the revised scope for the date range and the search terms, and that this perceived burden is subsequently negated, as it will no longer exist with the much-reduced number of emails now being requested.

Thank you also for confirming that the information previously provided was specific to the email records of Jim Harra and advising that a number of private office staff have access to this mailbox with the appropriate access to both send and receive emails on Mr Harra’s behalf. I would be most grateful if you could confirm the actual number of private office staff that have access to this mailbox, the grades of all those private office staff and please also supply the names of the individuals if any of those are at grades Senior Civil Service (SCS) or above.

Yours sincerely,

S Packham

Dear FOI Team,

Thank you for your communication from earlier today, informing me that you are currently considering the information within scope of my request.

Having already narrowed this request in response to the concerns you initially raised in FOI2021/23340, and then in FOI2021/23977, by excluding from this submission those prior combinations of search terms listed - and thus removing the need for any manual review of individual emails in order to confirm any supposed context - it is clear that this revision, made in good faith and directly in order to help the authority with any perceived burden resulting from that (now unnecessary) task, would significantly reduce the time any analysis should then take.

It is unclear precisely what you might mean by 'non-subject specific emails'? I have not asked you to provide emails (which you confirm are held within Jim Harra's mailbox alone) on any specific subject - I have merely asked you to supply those emails which contain the search terms 'LCAG' and/or 'Loan Charge Action Group' over the date ranges I referenced on 25 October. If those emails - as you claim herein, but without any further context or reasoning - are in no way connected to the Loan Charge Action Group or even the Loan Charge policy, then it immediately begs the question as to why the search terms 'LCAG' and/or 'Loan Charge Action Group' would even be found, let alone contained, within the text of those 'non-subject specific' emails and why indeed they would be a point of interest or discussion to HMRC departments and policy officials within those email communications which you have now identified? It seems likely that this informative disclosure will prompt yet further interest into HMRC's wider commentary on 'LCAG' and/or 'Loan Charge Action Group' and should help to provide an even more accurate picture of the dialogue which has been shared internally.

I am therefore confused as to why you would state that consultation with a large number of policy officials to determine if exemptions may apply might pose what you describe as an unreasonable burden on the department - you have already identified the number of instances these search terms appear, and will have, as a consequence of that exercise, now know which emails contain them. I have simply asked you to provide those emails, and as already stated, other than the names of any Senior Civil Service (SCS) grade personnel, my request does not seek the provision of any third-party personal data, so redaction in those cases (e.g. under s40(2)) is obviously considered acceptable and expected as per the FOI guidelines. I have also communicated the point that the staff time taken, or likely to be taken, in removing any exempt information in order to leave the information that is to be disclosed, often referred to as ‘redaction’, cannot be included as part of the costs of extracting the requested information, which the ICO guidelines reinforce.

In addition, it is uncertain what you allude to when you reference 'the sections of information relevant to my line of enquiry' - I feel that I have been as clear and as helpful as possible in narrowing my request and simplifying the task at hand for the authority, reducing both the scope of the search and the applicable dates to the point where it could not be open to any misinterpretation. On that basis, please proceed to supply the information requested in my communication of 25 October, taking into account and giving due consideration to all the points and questions I have now raised across these prior related exchanges, within the statutory timeframe set by the Freedom of Information Act - thank you once again.

Yours sincerely,

S Packham

Dear FOI Central Team,

Your latest response, dated 22nd November and received on the same date, informs me that you wish to extend the 20 working-day time limit for responding to my narrowed request as you now suddenly claim - 36 working days after my original request - that some of the information I have requested is being considered with reference to the exemptions at section 36(2) of the FOIA. You have also given a commitment that you will provide a substantive response to my request as soon as possible and no later than 21st December. That is 21 working-days after 22nd November, so please confirm that this date will now be revised to 20th December instead to meet the statutory deadline of 20 working-days as advised by the Information Commissioner's Office for any extension under section 10(3), with anything beyond this considered exceptional (such as a major incident or exceptional levels of complexity involving a number of external parties) and having to be justified by the authority in the event of any complaint.

Having carefully digested your previous responses and acknowledged the concerns you raised, I have subsequently narrowed my request and met your requirements on each occasion to help alleviate any perceived burden on the authority. I have outlined the reason for my request, simplified the search criteria, and waited patiently for the information. It is disappointing in the extreme that you now see fit to claim yet another exemption (and one which has made no prior appearance or mention during the course of these associated requests), referencing the apparent consideration you must now apply to determine the balance of the public interest.

Looking at the relevant entry in the Freedom of Information Act, section 36(2) is:
Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—
(a) would, or would be likely to, prejudice —
(i) the maintenance of the convention of the collective responsibility of Ministers of the Crown, or
(ii) the work of the Executive Committee of the Northern Ireland Assembly, or
(iii) the work of the Cabinet of the Welsh Assembly Government.]
(b) would, or would be likely to, inhibit —
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

I am assuming from a process of elimination - but have no knowledge otherwise - that your claim is therefore based on section (b) or (c), but as you have not made this clear, please could you kindly confirm which specific subsections are being considered? Should you subsequently decide, following this requested extension period, that either of these will be used by the authority to prevent disclosure and to withhold this information, then please ensure that you provide in full the reasonable opinion of that qualified person, all advice and comment received by that qualified person as input to any decision, and all metadata associated with all related exchanges on the subject of this request. Please also ensure that all the points and questions I have raised in my previous revisions (and not yet answered or clarified) are addressed and included within your next communication.

I have tried to be helpful, objective and reasonable with my request throughout these exchanges. I have tried to understand and respond to any burdens which you have claimed would impact on the authority. I have tried to be measured and consistent in my own responses, formulating an appropriate reply to any concerns you have raised and justifying any reasoning which I believe supports my request.

It does not appear that HMRC, on the basis of this particular request and how it is being managed internally, is either recognising or acting upon the applicant-blind element of the Freedom of Information legislation. It does appear, however, that is there is a concern within HMRC that the release of this information to the public domain might seem to be against the interests of HMRC themselves, rather than against the interests of any constituent members of the public.

I am aware that the Information Commissioner's Office is suffering from a huge backlog of cases and it should not be necessary for a simple request such as this to extend or add to that burden. Any reasonable observer or objective listener would probably agree, so I sincerely hope that you will use this additional time to fully consider all aspects of the public interest which you claim is under review here - not just for the public themselves, but also for the Information Commissioner's Office, who quite clearly endorse the message that everybody has a right to access official information and disclosure of that publicly-owned information should be the default.

Yours sincerely,

S Packham

Dear FOI Central Team,

I have now been patiently waiting 49 working days for a response to my revised and narrowed submission dated 25th October.

Your last communication (dated 21st December) informs me that you may still wait until 24th January to send that response. This would be 62 working days after I asked for the information, which any reasonable person would consider an unacceptable delay and in clear breach of all of the statutory time limits associated with the Freedom of Information Act.

There is little doubt that you remain fully aware of the published guidance from the Information Commissioner's Office in relation to the time for compliance under section 10(3) of the FOIA. There can be no possible misinterpretation of that guidance, which confirms their established view that an authority should normally take no more than an additional 20 working days to consider the public interest, meaning that the total time spent dealing with the request should not exceed 40 working days - with any extension beyond this defined as exceptional. This request is now well beyond that upper limit of 40 working days.

Having chosen to disregard this explicit and unambiguous guidance from the ICO without providing any evidence (or informing me) that this delay is exceptional, I ask you to please now provide the information immediately. I trust that the use of the word 'immediately' does not require any explanation.

Should you decide to comply, then alongside your substantive response, please include a detailed exposition of the justification you have deemed as valid in delaying and withholding this request for information by 49 working days so far, which thus renders and defines it as exceptional. Should you decide not to comply, then please provide (by return) any additional evidence or reasoning which you claim legitimises your decision to further extend this period to (up to) 62 working days, should you still maintain and determine that this information will continue to be withheld and not supplied immediately as requested.

Yours sincerely,

S Packham

Dear FOI Central Team,

It is noted that my communications continue to be ignored.

"...information delayed is information denied. That is especially true for civil society and journalists, because investigating a story and getting the information six months or a year later means that the law is not fit for purpose."
Elizabeth Denham CBE, (outgoing) Information Commissioner, Information Commissioner’s Office, appearing as witness before the Public Administration and Constitutional Affairs Committee oral evidence session on Thursday 25 November 2021.

It would appear that she speaks an obvious and undeniable truth.

Yours sincerely,

S Packham

Dear FOI Central Team,

The clock now stands at 59 working days - that is 19 days beyond the maximum period which the ICO confirm any authority should take to consider the public interest.

This persistent disregard, not just for the relevant law but also the transparently clear guidance from the ICO in relation to that law, is plain for all to see. The demonstrable contempt which is evident not just by the lengthy and unacceptable delay, but the deliberate stonewalling of any attempt I make to elicit a timely response, is even more readily apparent. It is quite obvious that you consider yourselves above the legislation and not subject to the rules which are in place.

I ask you once again to provide the information, and answers to all the points I have raised in relation to this request, with immediate effect and without any further obstruction or delay.

Yours sincerely,

S Packham

Dear HM Revenue and Customs,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of HM Revenue and Customs's handling of my FOI request 'Emails from and to Jim Harra which contain keywords as described'.

Thank you for your reply dated 24 January 2022.

Within the body of this response, you highlight the fact that any Bank Holiday in one of the four nations is categorised as a non-working day for the purposes of the FOI. I was otherwise unaware of this distinction, so thank you for the information. Taking the Bank Holiday in Scotland on 30 November 2021 into account, it is clear that your reply came 61 working days after my rescoped request was received - and not 62 working days as previously calculated. It does not, however, excuse the lack of any response or explanation to my inquiries dated 05 January 2022, 07 January 2022 and 19 January 2002, all of which were ignored.

Your communication dated 22 November 2021, under reference FOI2021/25439, included a statement which read "We will provide a substantive response to your request as soon as possible and no later than 21 December". On the date of that self-determined deadline, you sent another message using the WhatDoTheyKnow platform to advise me "We are continuing to work on your request but are not yet in a position to provide you with the outcome of our considerations. We aim to respond to you by 24th January. We will of course reply sooner if possible". It is of course disappointing to note that no earlier reply was forthcoming and that both replies were delivered on the very last day of the specified - and reset - time frames.

Your most recent response contains the acknowledgement that "HMRC is led by ICO guidance that an authority should normally take no more than an additional 20 working days to consider the public interest, meaning that the total time spent dealing with the request should not exceed 40 working days". This is followed by your claim that you nonetheless considered a further extension reasonable, owing to the apparent complexity of my request and the large number of officials who you insist should be consulted.

I do not accept either of those claims. Throughout this request, and in accord with every action I have already taken to assist and help mitigate any perceived burden on the authority, my willingness to redraw the lines and scope was transparent and reasonable.

The vast majority of the information I asked for had been condensed into three months (for received items containing the search terms LCAG or Loan Charge Action Group across August, September and October 2019), with a tiny proportion - only 6 instances in total - over four months (for sent items with a single search term of LCAG across February, March, June and September 2019). You confirm that HMRC identified only 47 unique emails within the scope of my request, with most of these being circular updates as per your own summary. It is my view that this could not possibly constitute an 'exceptional level of complexity'. I feel certain that no reasonable person would categorise an exercise to review 47 emails as requiring an 'exceptional level of complexity'. From the output you have now supplied, I do not recognise any detail, content or information which could be argued as comprising an 'exceptional level of complexity' for HMRC to review or resolve.

In addition, and as clearly referenced within the ICO published guidelines, any 'exceptional level of complexity' would by definition also involve a number of external parties. I would recognise and interpret the operative use of the word 'external' here as meaning external to HMRC, yet the senders and recipients of these emails were virtually all HMRC staff members, as well as a small number of named senior HM Treasury officials who are all publicly conspicuous with regard to their involvement and connection with the Loan Charge policy. The original request, and the revised iterations following the narrowing in scope to assist your searches, all made it clear that the requested information was from the singular mailbox of Jim Harra, the person in ultimate charge and control of HMRC as the Chief Executive. It would be reasonable to conclude that there would therefore only be one senior official - in fact, the most senior official within HMRC - who would need to be consulted. However, you have stated that 'a large number of officials' needed consultation before release - for the purposes of this internal review, what is your definition of 'large' and what in turn was the actual relevance of their external status?

The Information Commissioner's Office emphasise that public authorities will need to demonstrate that the length of any time extension is justified. My comments and reasoning above make clear my own position on this matter.

The information which the authority finally disclosed was provided as an annex to your response. You confirm that some of this was withheld using Freedom of Information Act exemptions which you believe might apply. Those genuinely withheld under section 40(2) are fully accepted. I challenge those being withheld under section 44(1)(a), pursuant to CRCA 2005, section 18(1) and section 23(1) where 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.

This is on the basis that those redacted entries from the emails listed below were - in the main part - comments made by staff in HMRC Comms Press Office (whose names have already been withheld under section 40(2)) on published items (which obviously reference the subject of the Loan Charge) from public daily news outlets, selectively extracted for internal use. I do not accept that this information is deemed more worthy of being withheld by HMRC due it it being 'held in connection with one of its functions', when other information in the same circular updates can be similarly and accurately described, but - because that other information does not relate to the Loan Charge (which Penny Ciniewicz, HMRC Customer Compliance Group Director General, herself describes as a really difficult and controversial area of policy in email 7) - is considered of minimal consequence to the authority and can therefore be freely disclosed without any potential repercussion or comeback. The information being withheld is in:

Email 12 (24 August 2019)
Email 21 (03 September 2019)
Email 22 (04 September 2019)

It is of note that many other entries across numerous emails from HMRC Comms Press Office contain wording where the identity of the person to whom the information relates, or which would enable the identity of such a person to be deduced has not been redacted or withheld. There is no need to republish those names here as anyone wishing to scrutinise the emails can locate these for themselves. What is also of very significant note is that while claiming information exemptions which relate to the identification of a person in the context of this request, you decide to release information which (in my opinion) quite clearly should have been withheld -

Duty Press Officer: Dan Allen - 07741 180283
Senior Press Officer: Stevie Roden - 07469 022760

As you have made use of section 36(2)(c) elsewhere and justified this claim on the basis that "It is the opinion of HMRC’s qualified person that disclosure of such information would likely be misused by those so minded and would result in the various departments having to amend their arrangements", I am somewhat surprised that the names of these two press officers and their mobile contact numbers were not considered as vulnerable to those so minded as to potentially 'misuse' this information. It is uncertain what, if any, evidence you have to support this completely unsubstantiated claim, but the fact that this data has been disclosed would appear to undermine and contradict the opinion expressed by HMRC's qualified person in this specific instance.

Following on from the challenges I have made above, the primary dispute in this field is your contentious use of section 36(2)(b)(i) and (ii) in withholding a large subset of information, which I do not consider justified, or acceptable, or reasonable.

You start by informing me that "Information within sent emails 3 and 4 is being withheld because it is considered exempt pursuant to sections 36(2)(b)(i) and (ii) FOIA. This is because its disclosure would be likely to, inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation."

You make specific, identifiable reference to emails 3 (on page 9 - Subject: RE: LCAG twitter) and 4 (on page 10 - Subject: RE: reported suicides) in isolation as holding information which is being withheld pursuant to sections 36(2)(b)(i) and (ii), but have also - and without any reference in your letter - withheld information (by redacting the entire contents) in the following emails using the same claimed exemption:

Email 1 (on pages 14-16 - Subject: ExCom Hot Topics 6 August)
Email 18 (on pages 70-73 - Subject: RE: CEO Group Hot Topics 2 September)
Email 30 (on pages 105-108 - Subject: ExCom Hot Topics 2 September)
Email 33 (on pages 121-124 - Subject: FW: Monday Morning Hot Topics ‐ 7 October 2019)

Email 3 is from Jim Harra, HMRC's Chief Executive, to Ruth Stanier and Ian Allen on the subject of LCAG twitter. From the size of the redaction, it would appear to be a single line of text. You claim that "In this instance, HMRC’s qualified person takes the view that the department’s Chief Executive must be able to freely challenge officials to ensure that their approach taken to problems is correct and appropriate. This should be able to be done without the trepidation that such comments may enter the public domain without additional context, whilst the issue is still ongoing."

This email is dated 07 March 2019 - now over three years ago. Whatever the 'advice', whatever the 'view', whatever the 'deliberation', this issue is plainly and clearly in the past - and any challenge to his officials long complete. You opine that if this information was disclosed, it would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage the quality of advice and deliberation, leading to poorer decision making.

During Jim Harra's appearance at the Economic Affairs Committee oral evidence session on 15 July 20121, held to follow up the committee's ongoing concerns about the Loan Charge and in a response to a direct question from Lord Fox, he stated "First, I can assure you that when I send emails I do not have regard to them being made public, so there is no wording in them that is couched in terms because of any concern that they will be made public. I am probably well known within this department for my candour in my emails, hence the comments earlier."
The full transcript is here - https://committees.parliament.uk/oralevi...

If one can take Mr Harra at his word whilst giving formal evidence to a parliamentary committee, then it is transparently evident that he would have no concern about any of his email content being made public. The ICO guidance on section 36 makes it clear that 'civil servants and other public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice'. This statement, when combined with Mr Harra's own publicly affirmed views on email disclosure to the Economic Affairs Committee in an oral evidence session on the subject of the Loan Charge - which is at the very heart of this request - should be wholly sufficient to counter your unacceptable, unjustified and misleading attempts to use section 36 to try to withhold this important information.

Email 4 is again from Jim Harra to the same recipients (Ruth Stanier and Ian Allen) but on a different subject - reported suicides. The redaction in this email is more extensive, but exactly the same counter-arguments which I have made above to contest your claimed use of section 36 still apply. The email is from 11 March 2019 - again, over three years ago. Eight people are known to have committed suicide as a result of this retrospective policy. Eight families forever altered. This grim subject has been raised on numerous occasions in the House of Commons, in parliamentary committees and evidence sessions, and has been consistently highlighted throughout the life of this policy in official letters from many MPs, the members of the Loan Charge All-Party Parliamentary Group, the Loan Charge Action Group and profiled in numerous media articles. It remains of deep and unsettling concern to all opponents of this heavily-criticised and deeply-flawed government policy - and a distressing, anxiety-inducing worry which shows absolutely no sign of abating for either the victims and their families, or those MPs and peers trying despairingly to reason with government. When individuals are actually committing suicide, how on earth is the public interest better served by withholding evidence of the HMRC Chief Executive's view on such desperate acts by members of the public?

The remainder of those emails listed (1, 18, 30 and 33 as above) are all from the HMRC Permanent Secretaries’ Office and contain what are described in the subject line as 'Hot Topics'. A complete redaction of the content has been applied in all cases, using section 36(2)(b)(i) and (ii) as the basis for refusal to disclose. There is no accompanying explanation, reference or reasoning for the withholding of this information. According to the short preface in each of these emails, these are simply readouts for information to those included on the distribution list. There is no indication that any 'view', 'advice' or 'deliberation' is being sought or given within these emails - as the sender states, it is merely information. I do not accept that you are able to use this exemption to refuse disclosure, as the information contained within is not only around two and a half years old now (laying bare your stated claim that there might be 'premature' exposure to public scrutiny and comment), but is also altogether unconnected to your stated justification elsewhere that HMRC's Chief Executive "must be able to freely challenge officials to ensure that their approach taken to problems is correct and appropriate".

You make it apparent that HMRC accepts that there is a clear public interest in government departments being as open and transparent as possible, so as to increase accountability and inform public debate. You contrarily argue that there is a more compelling public interest in preserving the safe space in which officials can deliberate issues, whilst protecting the department’s ability to operate effectively. The Information Commissioner's Office make it clear in their guidance that the safe space argument is more commonly applied to the development of government policy, and as such it relates to section 35; however, it could also apply to section 36(2)(b) if premature public or media involvement would prevent or hinder the free and frank exchange of views or provision of advice. The Loan Charge has been on the statute books since November 2017, almost four and a half years ago - so what views or advice on the Loan Charge could now be considered as suffering from 'premature' exposure in March 2022?

The ICO continue by saying that this need for a safe space will be strongest when the issue is still live. Once the public authority has made a decision - as it clearly has in the case of the Loan Charge - then a safe space for deliberation will no longer be required. If it was a major decision, there might still be a need for a safe space in order to properly promote, explain and defend its key points without getting unduly sidetracked. However, this can only last for a short time and the public authority would have to explain clearly why it was still required at the time of the request on the facts of each case. The timing of the request will therefore be an important factor.

I return to some of my previous comments about the purpose and value of this request, which I shared on 07 October - the Loan Charge Action Group is an organisation which supports people facing the Loan Charge. Its members seek the information and evidence which is being used by HMRC in its pursuit of these individuals and companies. There have been claims from HMRC - at the most senior level - that campaigners have issued 'misinformation' on the subject of the Loan Charge. Amongst other concerns, this request seeks evidence of those claims which the authority feel justified in publicly broadcasting.

Within the body of this part-disclosure, an email (20) from Nick Jones, Counter-Avoidance, discusses the internal debate which was obviously taking place between staff in HMRC and HM Treasury on the selective merits of potential candidates for the supposedly 'independent' Loan Charge review, which the government had been reluctantly forced to accede to after pressure from MPs across the House. The painful irony of the same people responsible for defending the design, creation and implementation of that policy actively discussing and debating suitably cherry-picked candidates to 'independently' review that policy does not go unnoticed, nor will it go unchallenged. Without providing a single shred of evidence (claiming he unfortunately could not find the related tweet), he refers to 'a barrage of abuse' which was allegedly directed at one of those individuals. A sentence is included within the same paragraph which states "We (40(2)) experienced the wrath of the armchair warriors". Section 40(2) would be used to prevent disclosure of the personal information of officials or members of the public, yet the pronoun-led construction of this sentence would seem to imply otherwise. Setting that small matter aside, it is an evident (and undeniable) demonstration of the contempt and disdain which senior officials in HMRC reserve for members and supporters of the Loan Charge Action Group. Yet, according to those same senior officials, the Loan Charge Action Group are apparently the ones who issue 'misinformation' - although, as in this same example, no actual evidence is ever provided to back up those false accusations.

This same adversarial attitude and visible disregard for victims of this policy is further exposed by many other comments from senior officials which are included for all to see within this series of part-disclosed emails; yet those LCAG members and supporters are NOT the ones being so heavily criticised and called to account by MPs, peers, parliamentary committees, tax experts and journalists - it is the very people working for this public authority, now so steeped in institutional resistance to legal fact and evidence that they seem unable to readily tell fact from fiction. An attitude and stance aptly illustrated by a communication from HMRC Comms Press Office on 02 September 2019 - "For once, this has drowned out the loan charge campaigners". Which must have all seemed something of a temporary relief to senior officials "given LCAG’s record of abuse and threats" (Ruth Stanier, CS&TD Director General), as well as "pressure from LCAG that could become personal and nasty" (Jackie McGeehan, Deputy Director, Individuals Policy Directorate), whilst "leaving LCAG’s false claims unrebutted is unlikely to be a winning strategy" (Jim Harra, Chief Executive).

The ICO guidance for section 36 confirms that public authorities should keep a record of the qualified person’s opinion and the submission made to obtain that opinion. In the event of a complaint, the ICO will expect to see a record of the qualified person’s opinion. The qualified person’s opinion is crucial in order to engage the exemption. If the opinion is not given by the appropriate person, then the exemption cannot apply.

The Freedom of Information Act, section 36(5) states that in subsections (2) and (3) “qualified person” (c) in relation to information held by any other government department, means the commissioners or other person in charge of that department. HMRC currently has eight commissioners: Jim Harra, Angela MacDonald, Justin Holliday, Penny Ciniewicz, Sophie Dean, Katherine Green, Myrtle Lloyd, Joanna Rowland.

In my communication dated 30 November 2021, I asked "Should you subsequently decide, following this requested extension period, that either of these (section 36 exemptions) will be used by the authority to prevent disclosure and to withhold this information, then please ensure that you provide in full the reasonable opinion of that qualified person, all advice and comment received by that qualified person as input to any decision, and all metadata associated with all related exchanges on the subject of this request. Please also ensure that all the points and questions I have raised in my previous revisions (and not yet answered or clarified) are addressed and included within your next communication".

You have not provided that opinion, nor the advice and comment received by that qualified person, nor the metadata associated with this request. Please supply this information as part of this internal review.

With reference to a point I made in my message dated 25 October 2021, I asked for sight of the referenced guidance you confirmed as part of a series, which goes into more detail than that for members of the public, to help public authorities to fully understand their obligations and promote good practice, and that I would be most grateful for your co-operation in providing such detail and information, so that I can be better informed for any future requests. No such information has been forthcoming and all you have done in your latest response to this request is to tell me that your comments 'drafted a summary of ICO guidance', which was not what I was led to believe from your reply dated 21 October 2021. I therefore remain none the wiser as to whether this 'series' exists or it doesn't, despite my polite and reasoned request to see such detail.

From the responses I have read to a large number of Freedom of Information requests (made by others which are available in the public domain) on the subject of the Loan Charge, it is quite remarkable how one-sided the public interest test has tended to be when those are being considered by HMRC on behalf of the requester. Were the information being sought on any other (less controversial) subject, I strongly suspect that the resultant decisions might be treated in a very different manner and would likely exhibit a very different outcome. The term 'Loan Charge Scandal' has not become so common and widespread or so frequently used by MPs and opponents without very good REASON. Uncovering the hidden facts, truth and evidence in this shameful affair is never going to be easy, or even involve anything resembling a level playing-field with a public authority that has been in receipt of such constant criticism and condemnation from MPs, peers, tax experts and journalists regarding its unacceptable behaviour and institutional silence when answers to difficult questions have been demanded by those bodies - that much we have all learned from the bitter experience of the last few years.

However, the option for a public authority to revisit, reconsider, re-evaluate and review those mistakes in order to move forward and to reconcile that regrettable past is always left open by a reasonable person. On that concluding note, I sincerely hope that HMRC will start that process here by disclosing this information as requested following a thoroughly proper and openly impartial internal review. Dependent on the outcome of this representation, I reserve the right to escalate this request to the Information Commissioner's Office as one requiring an urgent and priority investigation.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/e...

Yours faithfully,

S Packham

Dear HMRC,

My request for an internal review was delivered to you on 11th March, and I am still waiting for your substantive response. This follows the same pattern of delays to this request for information which I have raised and complained about in previous messages.

There is little doubt that you will therefore be fully conscious of these time-related breaches which the Information Commissioner's Office considers unacceptable when dealing with Freedom of Information requests, with their clear guidelines being seemingly ignored and dismissed by you as the responding authority.

Please provide the information requested, or present the reasons and explanations which you believe appear to warrant yet another lengthy delay.

Yours sincerely,

S Packham

Dear Team, FOI,

The Freedom of Information Code of Practice, published by the Cabinet Office in July 2018, provides clear instruction on the internal review process and the responsibilities of the authority in this situation; I refer to the relevant extracts from this Code of Practice below:

5.4 Requests for internal review should be acknowledged and the applicant informed of the target date for responding. This should normally be within 20 working days of receipt.

5.5 If an internal review is complex, requires consultation with third parties or the relevant information is of a high volume, public authorities may need longer than 20 working days to consider the issues and respond. In these instances, the public authority should inform the applicant and provide a reasonable target date by which they will be able to respond to the internal review. It is best practice for this to be no more than an additional 20 working days, although there will sometimes be legitimate reasons why a longer extension is needed.

My request for an internal review was delivered on 11th March 2022 - 54 working days ago. Please either respond with the information requested, or provide a reasoned explanation for this frustrating and extensive delay.

Yours sincerely,

S Packham