Dear HM Revenue and Customs,

On 15 June 2021, you responded to a request for an internal review (IR2021/08111).

In this response, you quoted and referenced exemptions under Section 36(2)(b)(i) and (i ) of the FOIA, which you used to withhold information and prevent disclosure.

Please supply, unaltered and in full, the qualified person’s opinion and all submissions (of any type, in any format) provided to the qualified person for considering that request.

Yours faithfully,

Corinne Booker

Dear FOI Team,

You have broken the law by delaying a response to this request, as the law states you should have responded promptly and by 03 September 2021.

Section 10(1) of the FOIA states that an authority must comply with section 1(1) of the Act ‘…promptly and in any event not later than the twentieth working day following the date of receipt.’

Authorities should regard the 20 working day limit as a ‘long stop’, in other words the latest possible date on which they may issue a response.

Please provide this overdue response immediately.

Yours sincerely,

Corinne Booker

Dear FOI Team,

It would appear that you consider your deliberate breaking of the law to have no consequence - that will presumably be tested as this request is escalated.

For the record, it is noted that you continue to break the law by delaying a response to this request, as the law states you should have responded promptly and by 03 September 2021, making this now 15 days overdue.

I repeat my previous reference to Section 10(1) of the FOIA, which states that an authority must comply with section 1(1) of the Act ‘…promptly and in any event not later than the twentieth working day following the date of receipt.’

I also repeat the clear rule that authorities should regard the 20 working day limit as a ‘long stop’, in other words the latest possible date on which they may issue a response.

Please provide this long overdue response immediately.

Yours sincerely,

Corinne Booker

Dear FOI Team,

Thank you for your response.

Please understand that this is NOT a request for an internal review at this stage.

However, as you will undoubtedly be fully aware, this response was supplied 37 working days after you received my request, resulting in a clear breach of your statutory obligation under the Freedom of Information Act. I sent follow-up messages to you on 08 September and 24 September to highlight the fact that you were breaking the law by not providing a response within 20 working days, with neither of those messages receiving a reply - prompt or otherwise. You eventually provided your response on 28 September.

Within the Information Commissioner's Office document 'Time limits for compliance under the Freedom of Information Act (Section 10)', I refer you to the following -

11. If an authority is relying on one of the exemptions in Part II of the Act to either refuse to confirm or deny whether information is held or to refuse to provide information, then under section 17(1) it has a duty to issue the requester with a refusal notice within the time for compliance with section 1(1).

Section 17 of the Freedom of Information Act confirms the above -
(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which —
(a)states that fact,
(b)specifies the exemption in question, and
(c)states (if that would not otherwise be apparent) why the exemption applies.

You did not make ANY response within 20 working days (as the law requires), thereby failing in your statutory duty on not just section 10(1), but also section 17(1) as well.

The Information Commissioner's Office document provides further confirmation -

12. As outlined earlier, the time for compliance with section 1(1) is defined by section 10(1), which means that the notice must be issued promptly and within 20 working days of the date of receipt of the request.

14. If only some of the requested information is exempt, then the authority will still have to comply with its section 1(1) duties in respect to any information which is not covered promptly and within 20 working days.

In summary, you have failed in your duty to meet your statutory obligation by not providing a response to my request within the deadline of 20 working days. You have also failed in your duty to meet your statutory obligation to inform me, within the deadline of 20 working days, that you would be (to any extent) relying on a claim that ANY provision of Part II (in relation to a claim that some or any information is exempt) would apply. As a direct result, all the qualified exemptions you claim are engaged are therefore invalid - and subsequently cannot be invoked. I acknowledge that the one exemption identified as absolute (in relation to those categorised under section 40(2)) will still apply.

I now request that you immediately provide a fully unredacted version (by withdrawing and removing those qualified exemptions which have been illegally used) of ALL the information provided in response to this Freedom of Information request (FOI2021/18343), as well as FOI2020/02898 and FOI2021/00393 (as you confirmed within your response to FOI2021/18343 that this disclosure INCLUDES the information provided in response to FOI2020/02898 and FOI2021/00393) without any further delay. This request is based on the clear, unambiguous and incontestable set of rules from the Information Commissioner's Office and the law as laid out by the Freedom of Information Act.

Yours sincerely,

Corinne Booker

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 'Qualified person’s opinion and all submissions provided to the qualified person for IR2021/08111'.

Your apology is not accepted as I believe it to be neither sincere or genuine. Forcing me to internal review is quite obviously a deliberate tactic being deployed firstly to obstruct, and secondly to delay disclosure.

From the ICO website - "If you are relying on an exemption, you must issue a written refusal notice within the standard time for compliance, specifying which exemptions you are relying on and why". You clearly failed to do so.

From the ICO document 'Refusing a request: writing a refusal notice' - "If a public authority intends to refuse a request on the grounds that it is subject to an exemption in Part II of the Act, or would exceed the cost limits under section 12, then it must ALWAYS issue the requester with a refusal notice informing them of its decision. The public authority should issue its refusal notice no later than 20 working days after the date of receipt of the request". You clearly failed to do so.

Section 17(2) of the FOIA states that where:
(a) in relation to any request for information, a public authority is, as respects any information, relying on a claim –
(i) that any provision of Part II which relates to the duty to confirm or deny and is not specified in section 2(3) is relevant to the request or
(ii) that the information is exempt information only by virtue of a provision not specified in section 2(3) and
(b) at the time when the notice under subsection (1) is given to the applicant, the public authority (or, in a case falling within section 66(3) or (4), the responsible authority) has not yet reached a decision as to the application of subsection (1)(b) or (2)(b) of section 2, then the notice under subsection (1) MUST indicate that no decision as to the application of that provision has yet been reached and MUST contain an estimate of the date by which the authority expects that such a decision will have been reached. You clearly failed to do any of this.

Also, as section 10(3) only permits extensions for 'further' consideration of the public interest, any additional time cannot (and could not) be used to determine whether the exemptions are engaged. Therefore the public authority should have identified the relevant exemptions in its refusal notice and satisfied itself that they are applicable, WITHIN the initial 20 working day time limit. Once again, you clearly failed to do so.

With regard to the public interest test demanded by a public authority's claim to the use of a qualified exemption, you can withhold information only if it is covered by one of the exemptions and, for qualified exemptions, the public interest in maintaining the exemption outweighs the public interest in disclosure. You must follow the steps in this order, so you cannot withhold information because you think it would be against the public interest without first identifying a specific exemption. You neither identified an exemption within the statutory time frame, nor informed me that you intended to apply an exemption within the statutory time frame.

A public authority can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure. The public interest here means the public good, not what is of interest to the public, and not the private interests of the requester. The requester’s identity or their motives in seeking the information are not relevant to the public interest test. The requester’s private interests are not in themselves relevant to the public interest test. Arguments that the information may be misunderstood if it were released usually carry little weight. If the public interest is equal on both sides, then the information must be released. If the public interest in disclosure is greater than the public interest in maintaining the exemption, then the information must also be released. In this sense, the ICO says that there is an assumption in favour of disclosure within the FOIA.

The public interest in the full disclosure of this information is substantial - and urgent - for the following reasons (amongst many others).

The House of Lords Economic Affairs Committee, when holding an oral evidence session with HMRC witnesses on 15th July 2021, repeatedly asked Jim Harra, the Chief Executive of HMRC, for the legal basis of the Loan Charge. He refused to provide it - despite the fact that this extensively-redacted disclosure proves that he had previously been furnished with all the legal advice, cases and precedents used to justify HMRC's continued pursuit of the victims of this retrospective policy. The Civil Service Code states that 'you must set out the facts and relevant issues truthfully, and correct any errors as soon as possible' and that 'you must not deceive or knowingly mislead ministers, Parliament or others'. He did not tell the truth, and he knowingly misled a Parliamentary committee - the dates on information held within this disclosure (and information released through other FOI requests) prove that he had the relevant information, but chose to withhold it.

The 246 MPs and peers as members of the Loan Charge and Taxpayer Fairness APPG (one of the largest APPGs in history) continue to oppose the policy and are committed to advocating on behalf of their affected constituents, pressing intensely for the government to change course. Public debate and discourse continues on the punitive and unjust nature of the policy, with condemnation of the policy (and HMRC's behaviour) from tax barristers, professional advisers, financial journalists, media reporters and both physical and online news outlets.

This alone should be considered sufficient reasoning to meet the benchmark of the 'public good'.

There is no doubt that the Information Commissioner's Office will conclude that you have broken Freedom of Information laws, breaching both section 10 and section 17 of the FOIA. It is also apparent that the attempted use of the qualified exemptions you are desperately citing, being subject to that public interest test (where the necessary presentation of a 'full picture' is required, as described in the paragraphs above - I should not have to do this given all the evidence and information already in the public domain, but as you conveniently and continually choose to ignore this in relation to every request relating to the Loan Charge, I am left with no option), are subsequently negated by your failures to meet your statutory obligations and duties on every single count.

On the presentation of the ‘full picture’, and even if wrongdoing is not an issue (when in this case, it clearly is), there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision makers. The fact that the advice and the reasons for the decision may be complex does not lessen the public interest in disclosing it and may strengthen it. Similarly, the information does not have to give a consistent or coherent picture for disclosure to help public understanding; there is always an argument for presenting the full picture and allowing people to reach their own view. There is also a public interest in the public knowing that an important decision has been based on limited information, if that is the case. Perhaps (more accurately) here it is a limited interpretation of the law - which should in turn compel HMRC, as a public authority, to disclose this evidence in order to fully inform the intense public debate on this matter.

Evidence of public concern about the issue could also be a factor for disclosure. If there is evidence of public concern but those concerns do not have an objective basis, there can still be a public interest argument for disclosure if this would show that the concerns are unjustified and would help restore confidence in the public authority. If HMRC are so confident that there IS a legal basis to the Loan Charge, then the public disclosure of those cases and precedents which inform HMRC's opinion would surely restore the trust and confidence which, to all intents and purposes, has all but disappeared whilst persisting with the current intransigent refusals and withholding this information with no reasonable justification. HMRC's continued and deliberate use of misinformation and its shameful misrepresentation of the law in the public domain must be challenged - the public interest must be served by disclosing fully redacted versions of these emails, documents and attachments (with the exception of the information exempt under section 40(2)) and for the public to KNOW what legal cases and precedents have been used to design and implement the retrospective policy known as the Loan Charge.

The authority must consider the relative weight of the arguments for and against disclosure. This can be affected by the likelihood and severity of any prejudice; the age of the information; how far the requested information will help public understanding; and whether similar information is already in the public domain. If information that is already in the public domain (rather than the requested information) is misleading or misrepresents the true position, or does not reveal the full picture, this may increase the public interest in disclosure. For instance, where part of some legal advice has been disclosed, leading to misrepresentation or a misleading picture being presented to the public, there may be a public interest in disclosing the full advice.

ALL court cases are public - so why will HMRC not release the legal cases and precedents they are relying upon to ruin tens of thousands of individuals, especially when members of Parliamentary committees are asking the Chief Executive of HMRC the very same question? Seven people (so far) have committed suicide as a result of this draconian policy - how many more people need to die before you accede to the continued public demand for transparency and accountability?

I am confident that this 'internal review' submission will be disrespectfully considered by HMRC's FOI team as no more than a necessary procedural step before it is escalated to the Information Commissioner's Office. The fact that you are forcing me to do this, having already broken Freedom of Information laws and withheld information regardless of the consequences, demonstrates both a callous disregard for UK law as well as the lives of those UK citizens so adversely affected by this policy. However, there remains a firm and collective intent to use that same UK law to help reveal the frequently withheld facts and evidence which prove long-held and well-founded suspicions that HMRC wilfully continue to distort, manipulate and 'spin' this crucial information, which MPs, peers and the wider public have an unquestionable - and legal - right to see released.

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

Yours faithfully,

Corinne Booker