Hart and Commissioner of Taxation - [2002] AATA 786

DECISION AND REASONS FOR DECISION [2002] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/269

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MICHAEL JAMES HART
  Applicant
           And    COMMISSIONER OF TAXATION
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date6 September 2002
PlaceBrisbane

Decision      The Tribunal finds that: (a) the request under the Freedom of Information Act 1982 lodged by the applicant with the respondent on 4 February 2002 extends to documents generated in relation to the decision to issue notices to the applicant under s 264 of the Income Tax Assessment Act 1936; and (b)      that the decision of the respondent, under the Freedom of Information Act 1982, rejecting the applicant's request for documents generated in relation to the decision to issue notices under s 264 of the Income Tax Assessment Act 1936 is properly before the Tribunal.
  ..............................................
  Mr B J McCabe
  Member
CATCHWORDS
FREEDOM OF INFORMATION – scope of request - whether scope of request has been extended by particulars
PRACTICE AND PROCEDURE – jurisdiction – whether reviewable decision
Freedom of Information Act 1982
Income Tax Assessment Act 1936

REASONS FOR DECISION

6 September 2002 Mr B J McCabe, Member

Introduction

The applicant has sought judicial review of the respondent's decision to:

(a)exercise its powers under s 263 of the Income Tax Assessment Act 1936 at the premises of the applicant's firm; and
(b)issue a notice under s 264 of the Act requiring the production of certain documents.

The applicant has sought access to a range of the respondent's internal documents that the applicant says shed light on the Commissioner's strategy for investigating aggressive tax planning practices. The applicant says he needs the documents for the Federal Court proceedings set down for trial at the end of September. He was unsuccessful in his attempts to discover the relevant documents through the ordinary pre-trial processes. He claims he is entitled to the documents under the provisions of the Freedom of Information Act 1982 pursuant to a request made by letter on 4 February 2002.
The letter from the applicant's solicitors containing the FOI request is cast in general terms. The respondent did not issue a decision, and he was deemed to have refused the request under s 56(1) of the Freedom of Information Act. Some time after that point, there was correspondence between the applicant and the respondent about the scope of the request. The applicant's solicitors provided a letter of clarification dated 24 April 2002.
Mr Belcher for the Commissioner says the applicant's request of 4 February did not extend to documents surrounding the issue of the notice under s 264. He said it only related to documents touching the decision to execute the notice under s 263 – although one might expect there would be many common documents, given that ss 263 and 264 are both tools used in the same investigative process. He says the applicant's letter of 24 April and subsequent correspondence attempt to enlarge the original request. He argues the additional documents relating to the decision under s 264 are covered in a separate request under the Act made in August. The decision made on that request is not before the Tribunal, he says.
Mr Hack for the applicant says the letters of 4 February and 24 April are consistent. The second letter merely particularises the request contained of the first letter. He adds the parties have always proceeded on the basis that the documents which are the subject of this request relate to the decisions in respect of the notices under ss 263 and 264. He referred to a transcript of proceedings before Kiefel J on 31 July 2002, for example, which he says clearly indicates the applicant's view that the documents sought relates to all aspects of the investigation, not just the execution of the notice under s 263 (although the documents in relation to the decision to exercise the powers under s 263 were a priority at the time). Mr Hack said the respondent did not take issue with this approach until 18 July 2002. He says the respondent has been tardy in dealing with the requests and it should not be able to dispute at this late stage the scope of the request.
The Relevant Legislation
Section 15 provides individuals with the right to request access to documents held by a Minister or agency. The terms of the request must satisfy the criteria set out in s 15(2). It is often the case that requests for access will be made in very general terms as the applicant may not have a clear idea of what documents exist. The department or agency must engage in a process of consultation with the applicant to see if it is possible to refine so that particular documents can be identified and a decision be made about their release. The request is deemed to have been made when s 15(2) has been satisfied. Before that point, the request is not a valid FOI request.
In this case a request was made in the letter from the applicant's solicitor dated 4 February 2002. The respondent required further information before the request could be said to have crystallised, but he failed to seek that information. As a result of his failure to respond to the request, he was deemed to have rejected the request in toto pursuant to s 56 of the Act. The applicant commenced these proceedings and sought review; the respondent obtained the leave of the Tribunal on 3 July 2002 to revisit the question and issue a decision by 2 August 2002. The respondent finally issued its decision on 5 August 2002.
Does the Applicant's Letter of 24 April Expand the Scope of the Request Contained in his Letter of 4 February or Merely Provide Particulars Designed to Clarify the Request?
Are there two requests for documents, only one of which is properly before the Tribunal as the respondent contends? Or is the applicant right in his contention that all of the documents he seeks are encompassed within the request made on his behalf on 4 February? It seems to me the dispute turns on a close reading of the text of the original application and the letter of clarification issued on 24 April.
The text of the letter dated 4 February 2002 is set out at T3 (page 9 of the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975). The letter of 24 April is set out at T8 (page 18).
The letter of 24 April makes it clear the applicant seeks a wide range of documents including those relating to the decision to issue the s 264 notice. I am satisfied in the circumstances that it is merely particularising the regrettably (but perhaps unavoidably) general terms of the request in the earlier letter.
The letter of 4 February is headed "Notice pursuant to section 264 of the ITAA to Michael James Patrick Hart". The respondent acknowledges the heading but points out that it refers only to a single notice, whereas a number of notices were issued. I don't accept anything turns on that. The text of the letter goes on to refer to documents generated in connection with the investigative process. Although the text does not refer to specific provisions of the Act, it does refer (at dot point 11) to the visit to the applicant's firm in August 2001. But one cannot infer from that reference that the applicant only seeks documents relating to the decision to make the visit and exercise the powers under s 263. Read in context, dot point 11 merely offers those documents as an example of the type of documents sought under the request. That request is clearly directed to documents generated as part of the larger investigation. The decisions to exercise the powers under ss 263 and 264 are both a part of that process, and it is artificial to distinguish between the decisions.
Conclusion
The letter of 24 April does not enlarge on the scope of the request contained in the letter of 4 February. That request extends to the documents generated in relation to the decision under s 264. The question of whether or not exemptions are properly available in relation to all of the documents therefore falls to be determined at the hearing of this matter.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  6 September 2002
Date of Decision  6 September 2002
Counsel for the Applicant        Mr Hack
Solicitor for the Applicant         Damien Bourke and Associates
Solicitor for the Respondent    Mr Belcher, Australian Government Solicitor