Sobczuk and Deputy Commissioner of Taxation

Case •

[2002] AATA 720

•

23 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 720

ADMINISTRATIVE APPEALS TRIBUNAL      ) Nos Q1999/1239

)         Q2000/226

GENERAL ADMINISTRATIVE DIVISION          )         Q2000/1038 

Re      PEDRO SOBCZUK           
  Applicant
           And    DEPUTY COMMISSIONER OF TAXATION     
  Respondent

DECISION

Tribunal       Mr K L Beddoe, Senior Member  

Date23 August 2002 

PlaceBrisbane

Decision      (a)      In applications Q1999/1239 and Q2000/226 the decisions under review are set aside and the matters remitted to the respondent to give effect to the concessions made and the Tribunal's reasons for decision. (b)          Application Q2000/1038 is not a valid application for review.         

(Sgd) K L Beddoe
  Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - access to documents – secrecy provisions - taxation information – whether exempt

Freedom of Information Act 1983 ss 16, 24, 35,38
Income Tax Assessment Act 1936 s 16

News Corporation Ltd & Ors v NCSC (1984) 6 ALD 83
Kavvadias v Commonwealth Ombudsman (1984) 6 ALD 47
Re Murtagh and Federal Commissioner of Taxation (1984) 6 ALD 112
Re Cook and Comcare (1996) 23 AAR 19
Re Caruth and Department of Health (AAT 8781, 18 June 1993)

REASONS FOR DECISION

23 August 2002                 Mr K L Beddoe, Senior Member              

  1. The applicant has made a series of requests to the respondent for access to documents relating to his own affairs and matters relating to the Carnarvon Medical Service Aboriginal Corporation ("the Corporation").  Two of those requests are valid applications within the terms of the Freedom of Information Act 1983 ("the Act").

  2. Eventually the applicant also made a series of requests for review to this Tribunal.  Those requests included three requests in relation to the respondent Deputy Commissioner.

  3. At the hearing of these matters I decided that application number Q2000/1038 was not a valid request for review.  The respondent had decided to waive charges and notified that decision on 1 November 2000.  It follows that the request for access to documents became a valid request on that date but no decision had been made when the application for review was made five days later.  There was no basis upon which this Tribunal had jurisdiction in the matter at that time because there was not a reviewable decision and there was not a relevant deemed refusal (ss 15(2)(e) and 30A(2) of the Act).

  4. At the hearing the applicant conducted his own case and Ms Campbell appeared for the respondent.  Oral evidence was given by the Applicant and two officers of the Australian Taxation Office.  The applicant was given leave to make written submissions following the hearing, with the respondent having right of reply to those submissions.  Written submissions subsequently lodged with the Tribunal have been taken into account.

  5. At the hearing of these matters the respondent relied upon the evidence of Deborah de Warren, a Freedom of Information Officer in the Australian Taxation Office.  Exhibit 1 is an extensive affidavit of evidence by Ms de Warren.  The affidavit exhibits documents evidencing a system of searches undertaken for documents, documents found by additional searches and documents in respect of which exemption from access is claimed.

  6. The Australian Taxation Office conducted an audit of the applicant with emphasis on the period of his employment with the Corporation. By way of background the applicant has adopted the role of a "whistleblower" in relation to the Corporation.  It is likely he is motivated by the fact of being charged, convicted and incarcerated in relation to certain transactions during the course of his employment.  However the applicant's motives in seeking access to documents are irrelevant for the purposes of the Act (s 11(2)) and are mentioned here only as a possible explanation of the somewhat confused state of these applications.

  7. The applicant is clearly dissatisfied with the audit of his affairs and seeks access to primary documents which the Australian Taxation Office used to amend assessments.  In doing so he seeks to reach back into the records of the Corporation because he believes, with considerable justification, that it is these records of the Corporation which have been used in making the amended assessments.  As I have already made clear, the applicant's motives are irrelevant but it is necessary to provide a context to the applications by the applicant.

  8. On 25 June 1999 the applicant sought access to documents relating to himself and his former employer ("the Corporation") held by the Australian Taxation Office being documents relating to his assessments of income tax for the years of income ended 30 June 1995, 1996, 1997 and 1998 including documents relating to what is described as salary sacrifice, documents relating to the Higher Education Contribution Scheme ("HECS"), and documents relating to non-payment of tax by the Corporation in relation to certain allowances.

  9. While there was a deemed refusal, the respondent eventually granted access to a number of documents but refused access to further documents which were considered to be exempt documents.  The applicant responded with a series of further requests for access which were accepted without a requirement to pay fees on the grounds of financial hardship.  Those requests were the subject of a decision by the respondent but only after there were deemed refusals in relation to each request.  The request was a further application for review in this Tribunal.

  10. The respondent relied, at this stage, on sub-section 24(5) of the Act because, in the respondent's view, the documents concerned the affairs of other persons and disclosure to the applicant would contravene section 16(2) of the Income Tax Assessment Act 1936. That sub-section reads:

    "16(2)  Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of 'officer' in subsection (1)."

'Officer' is defined in sub-section 16(1) as follows:

"'officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax;"

There is no dispute that the respondent Deputy Commissioner of Taxation is an officer as defined.

  1. The Australian Taxation Office is made up of its National Office in Canberra and 26 other offices.  Functions conducted at the various offices vary according to the characterisation of a taxpayer, the nature of the tax or the nature of the duties performed.  The 26 offices do not mirror each other because particular offices specialise in one or more aspects of the businesslines.  Every section in each office maintains either electronic and/or paper records.  Only some paper records are held on site.

  2. It seems that central to this diversification of the functions of the Australian Taxation Office is the ATO Integrated System ("AIS") which is a national system that records taxpayer registration details.

  3. Ms de Warren says and I accept that she searched the AIS system by entering the applicant's surname and first name to obtain the applicant's tax file number.  She said that the tax file number is an unique identifier that can be used to search the electronic records in the Australian Taxation Office databases and systems.

  4. She then searched the National Taxpayer System ("NTS") to obtain more information about the applicant's dealings with the Australian Taxation Office.  That identified the line of primary responsibility within the office.

  5. The NTS search disclosed various pieces of information about the applicant including lodgment of tax returns, assessments and amended assessments, outstanding taxation debts and the location of records relating to the applicant.

  6. Ms de Warren then searched a system known as the automated Document Dispatch System.  The system contains electronic copies of information contained in computer-generated documents sent to taxpayers. The notices of amended assessment sent to the applicant indicated that there had been assessing etc adjustments to the following items:

    (a)salary and wages, based on information supplied;

    (b)interest income, based on information supplied; HECS;

    (c)interest and penalties payable;

    (d)deductions for work-related expenses;

    (e)credits for tax instalment deductions;

    (f)credits for Tax File Number amounts deducted.

  7. The amended assessments had been actioned in taxation offices at Upper Mount Gravatt, Geelong, Moonee Ponds and Northbridge, no doubt reflecting the fact of changes of places of residence by the applicant from time to time and perhaps for other reasons.

  8. To locate the documents relating to these amended assessments Ms De Warren searched the File Location Service ("FLS") system.  The searches revealed that:

    (a)Reviews of the applicant's tax affairs had been conducted in the Upper Mount Gravatt, Cannington and Moonee Ponds offices;

    (b)A freedom of information request had been processed in the Northbridge office; and

    (c)There were archived records in the Northbridge and Cannington offices, an audit having been conducted by the special audit area in the Cannington office.

Details of certain correspondence with the applicant was also found on the system.

  1. Previous proceedings in the Tribunal had resulted in the audit files and other documents being relocated to the ATO Legal Practice.  Ms de Warren was able to establish this by her enquiries.  It also appears that previous freedom of information requests and complaints to the Commonwealth Ombudsman and the Problem Resolution Service had resulted in documents being relocated so that those matters could be dealt with. That resulted in further searches of the Problem Resolution system (PRESTO).

  2. In the result Ms de Warren was not confident that she could identify the location of all relevant documents because of the diversity of matters relating to the applicant's taxation affairs and his dealings with the Australian Taxation Office for the relevant years of income and the number of offices and officers that had been involved in the applicant's taxation affairs. Also changes in Australian Taxation Office structure and location of functions since 1995, when the applicant's disputed group certificate was presented, were thought to be relevant. To resolve the problem contact was made with each officer named in the special audit and freedom of information documents.  Those officers are identified in Ms de Warren's affidavit. 

  3. Set out in Schedule C to Ms de Warren's affidavit is a listing of additional documents located as a result of the searches instituted by the deponent.

  4. In so far as the applicant sought access to documents relating to organisations, monitored by the Registrar of Aboriginal Corporations, but relating to actions taken by the Australian Taxation Office, Ms de Warren did not search for any such documents because she understood such documents would be "protected" by section 16 of the Income Tax Assessment Act 1936.

  5. In oral evidence Ms de Warren said she had seen records of the applicant's income tax return for the year of income ended 30 June 1996.  That return cannot be located.  There is no record, according to Ms de Warren of a second 1996 return.  As to the group certificate said to have been issued by the Corporation to the applicant, her searches had failed to locate this document.  While it can only be a matter of speculation it is possible that the income tax return and the group certificate remained together in this case.

  6. The evidence of Ms de Warren satisfied me that there has been a genuine attempt to locate all documents relevant to the applicant's claim albeit that documents relating to other persons which the respondent says would be protected by section 16 of the Income Tax Assessment Act 1936 were not discovered. It seems to have been accepted that such documents have been characterised as a class of document coming within the terms of sub-section 24(5) of the Act.

  7. The grounds and factual basis for exemption claims are set out in the schedules to Ms de Warren's affidavit.

  8. I am also satisfied on the basis of the material before me that Ms de Warren's enquiries unearthed a significant number of additional documents, relevant to the request, and that the applicant has been granted access to many of these documents but only on the day prior to and the first day of hearing. 

  9. The respondent maintains that the following documents are either exempt documents or are irrelevant to the requests for access.  Some documents are claimed to be exempt in part only.
    ATO file / FOI Folio Audit File     Document Details  Exemption claim    
    B1      ATO file note dated 8 October 1998 written by Don Maclean, Team Leader Special Investigations          37(1)(b) 41(1) Parts are IRRELEVANT  
    B4      ATO file note - undated written by Don Maclean          37(1)(b) 41(1)          
    B7-8    ATO file note dated 11 January 1999 signed by Don Maclean          41(1)  
    B139-140      General Ledger Report – CMSAC Main Account 1-7-95 to 31-12-95 Part- IRRELEVANT Alternatively, 38    
    B147   Computer printout – ATO Integrated System dated 13/7/99 showing client identity profile for Carnarvon Medical Service Aboriginal Corporation     IRRELEVANT Alternatively, 38    
    B148   Computer printout – ATO Integrated System dated 13/7/99 showing "client role list" for Carnarvon Medical Service Aboriginal Corporation     IRRELEVANT Alternatively, 38    
    B149-150      Photocopy of fax from Carnarvon Medical Service on 21 January 1999 entitled 'Carnarvon Medical Service Aborigina (sic) Corporation, PO Box 278 Carnarvon 1995-1996           Balance – IRRELEVANT,  Alternatively 38       
    B151   CMSAC Facsimile Cover Note dated "21 January" Attention: Don Maclean From: Jenny Walsh Re 1995-96 Statement of tax paid on group certificates         IRRELEVANT Alternatively, 38            
    B152   ATO computer printout entitled "Statement of Account for Public Officer Carnarvon Aborigina…" dated 17 October 1998       IRRELEVANT Alternatively, 38    
    B153   ATO Letter dated 10 February 1997 From Withholding & Indirect Taxes, Northbridge WA to CMSAC        IRRELEVANT Alternatively, 38    
    B154-155 B156       CMSAC document entitled "Carnarvon Medical Service Aborigina (sic) Corporation, PO Box 278 Carnarvon From 1 July 1994 – 30 June 1995"     The details about Mr Sobczuk's group certificate were released to Mr Sobczuk Balance – IRRELEVANT Alternatively, 38       
    B157-158      CMSAC document entitled "Statement of Taxation paid 1st July 1995 – 30 June 1996"           IRRELEVANT Alternatively, 38    
    B159   CMSAC document entitled "Statement of Taxation paid 1st July 1984 – 30 the June 1995"           IRRELEVANT Alternatively, 38    
    B162-169      ATO computer printouts dated 13/7/99 Folio B169 is entitled "ATO Integrated System Note List" and the remaining folios are entitled: "ATO Integrated System Note List (1)"    Part of Folio B 163 and Folio 165 with CMSAC TFN deleted was released Balance – IRRELEVANT, Alternatively 38        
    B170   ATO Computer (WinDas 97) printout entitled "Narrative Display Screen NDR"           IRRELEVANT Alternatively, 38    
    B171-175      ATO Computer Printout dated 15/7/99 entitled "ATO Integrated System Account Posting List"  IRRELEVANT Alternatively, 38    
    B176-177      ATO Working Paper  re CMSAC's PAYE Annual Reconciliation for the 1994-95 year           IRRELEVANT Alternatively, 38    
    B178-185      ATO Computer Printout dated 13/7/99 entitled "ATO Integrated System Account Posting List"  IRRELEVANT Alternatively, 38    
    B186-211      ATO Computer Printout dated 23/9/99 entitled "ATO Integrated System Account Posting"        IRRELEVANT Alternatively, 38    
    B212-213      ATO Working Paper Re CMSAC's PAYE Annual Reconciliation  for the 1995-96 year            IRRELEVANT Alternatively, 38    
    C6      AMP Superleader Plan – Contribution Return for November 1996 addressed to Mrs Jenny Walsh (CMSAC)      Part released Part 38         
    C14-15          Letter dated 2 May 1997 from CMSAC to Dwyer Durack, Barristers and Solicitors, re Pedro Sobczuk        IRRELEVANT Alternatively, 42    
    C16-17          Letter  dated 2 May 1998  from CMSAC  to a third party  re Pedro Sobczuk           RELEASE – Part of the first sentence in paragraph 2 (referring to the charges against Mr Sobczuk) Balance – IRRELEVANT Alternatively, paragraphs 2 and 6 – 42; rest 38         
    C18-19          Letter dated  26 May 1997  from CMSAC to Dwyer, Durack, Barristers and Solicitors re Mr Sobczuk's request to access $30,000 of the injuncted monies IRRELEVANT Alternatively, 42           
    C22-23          Letter dated 12 February 1998 from Dwyer Durack, Barristers and Solicitors to CMSAC Re Pedro Sobczuk          42       
    C44     ATO computer Printout dated 17 October 1996 Statement of Account for Public Officer CMSAC        IRRELEVANT Alternatively, 38    
    C45     Letter dated 10 February 1997 From ATO (Withholding & Indirect Taxes, Northbridge) to CMSAC        IRRELEVANT Alternatively, 38             
    C46-48          CMSAC document entitled "Carnarvon Medical Service Aborigina (sic) Corporation… From 1st July 1994- 30th June 1995         The details about Mr Sobczuk's group certificate (on Folio C48) were released to Mr Sobczuk Balance – IRRELEVANT, Alternatively 38      
    C49-51          CMSAC document entitled "Statement of Taxation paid 1st July 1994 – 30th June 1995"  IRRELEVANT Alternatively, 38    
    C52     Commonwealth Bank Statement addressed to  The Administrator Carnarvon Medical Service Special Account issued on 29/12/95     The handwritten notation and the date and amount of the entry to which it refers will be released. Balance IRRELEVANT, Alternatively, 38  
    C53-54          Letter dated 18 January 1999 From CMSAC To Deputy Commissioner of Taxation, Northbridge Re Mr Pedro Sobczuk and.. Part- release Balance – Paragraphs 4,5 and all of paragraph 6, except for reference to the payment of $3886.33 is IRRELEVANT.  Alternatively, 38           
    E8      CMSAC document – Extract from handwritten payroll sheet (for period ending 27 December – refer to Folio H4)   Part – Released (information relating to Mr Sobczuk's payment) Balance – IRRELVANT, Alternatively 38       
    E9      CMSAC document entitled "Payroll for period ending… CMSAC 02.08.95" Part – Released (row of information relating to Mr Sobczuk) Balance – IRRELEVANT, Alternatively 38.    
    E10     CMSAC document – extract from a handwritten payroll sheet showing the notation "Special ACC 6.9.95"  Part – Released (row of information relating to Mr Sobczuk) Balance – IRRELEVANT, alternatively 38       
    PRS File         

  10. Handwritten file note  Undated Author – Carol Pimentel Re INB Litigation Cell UMG      38 – several words          

  11. Handwritten file note  dated 14 December 1999  author – Carol Pimentel  headed "Danny Johnson: files received yesterday"          Part – release Part – A (two clause) comment disclosing whether or not the ATO holds documents re dob-in action – 38.       
    45-46  ATO internal note (Microsoft Outlook message) dated 15 December 1999 from Les de Wind to Carol Pimentel re Pedro Sobczuk – FOI/AAT           Part - release Part – IRRELEVANT         
    47-50 Letter and attached Index to documents (enclosed with Folio 45-46) dated 9 December 1999 from ATO (FOI – Northbridge) to Pedro Sobczuk re Freedom of Information Act 1982 IRRELEVANT

  12. ATO Internal Note (Microsoft Outlook message) dated 10 March 2000 from Janet Wainwright to Mike Trinca re FOI request       IRRELEVANT          
    136-145        Problem Resolution Service – Case number 1579 Printout of case details As at 12 September 2000     Part – release Part – 38 (Two clause comment in fifth sentence of paragraph 3 on Folio 143)
    161-168        Problem Resolution Service – Case number 1579 Printout of case details as at 15 September 2000     Part – release Part – 38 (Sentences 2 and 5 of the final paragraph of Folio 166)           
    Special Audit File       
    2 pages         ATO Internal Note dated 3 December 1998 From Don Maclean To Kim Meakins  Part – Release (Paragraphs 4,5, part of 6,8,and 9) Part – 37(1)(b) (Subject heading, "Re…") Part – 38 (Paragraph 6 – after bracketed comment and para 7) Balance – IRRELEVANT    

Consideration

  1. The respondent handed up a copy file of documents included in the above schedule. The file is subject to an order under section 35(2) of the Administrative Appeals Tribunal Act 1975 and is subject to the operation of section 64 of the Act.

  2. I will deal with the documents seriatim.

  3. Document B1 is a file note by a Don MacLean, Team Leader Special Investigations, recording information supplied in confidence. The nature of the information contained in the document is such that it is consistent with the claim for exemption. There are eight paragraphs in the minute but only four appear to have any relationship to the applicant. I am satisfied that the information recorded in the minute dealing with the affairs of the applicant and other persons is information acquired by an officer respecting the affairs of the applicant and other persons. Except for information respecting the affairs of the applicant, section 16(2) of the Income Tax Assessment Act 1936 ("section 16(2)") applies and therefore section 38 of the Act applies because those parts of the document not relating to the affairs of the applicant are prohibited from publication by section 16. In that regard I do not understand section 16(2) to prohibit disclosure of information about the applicant to him by the respondent.

  4. Section 38 of the Act has a limited effect News Corporation Ltd & Ors v NCSC (1984) 6 ALD 83 and Kavvadias v Commonwealth Ombudsman (1984) 6 ALD 47.

  5. However it does have effect where the provision (in this case section 16(2)) is specified in Schedule 3 of the Act. Not only must there be an enactment which specifically prohibits disclosure of documents containing information properly characterised as within the stated prohibition (News Corporation) (see Re Murtagh and Federal Commissioner of Taxation (1984) 6 ALD 112 as a practical example) but it follows that it is the character of the information, ie information acquired about other persons (named or un-named) under the provisions of the income tax law which is prohibited from publication. Section 38 does not exempt the source of the information nor the information acquired about the applicant.

  6. A separate issue arises as to the source of the information provided to the respondent.  The public interest is in the applicant having access to the personal information about him, not the informant's identity (see Re Cook and Comcare (1996) 23 AAR 19 and the cases cited therein).

  7. In the result the applicant should have access to the document but only as to the section of the report commencing "one case sprung to mind" and ending with "if Jenny Walsh is not available".  The informant's name will need to be deleted in two places.  The applicant should also have access to the signature block.

  8. Document B4 is an undated file note written by Don Maclean.  The document is in the nature of an aide memoir, refers to an informant and a possible informant and contains information about the applicant which is personal information.

  9. As for Document B1 both the informant and potential informant's details should be deleted including their official position and location being identifiers of the informant and potential informant.  Otherwise the applicant should have access to the document there being no other relevant exemption.  That access has been conceded by the respondent.

  10. In relation to Document B7/8 the respondent has conceded access to the factual content of the file note but, as in B1 and B4, has not granted access to details of a potential informant. I agree with the respondent's conclusion for reasons already set out.

  11. Document B139/140 is an extract from the Corporation's general ledger, while it clearly shows details of salary payments to the applicant, it is in fact information obtained within the terms of section 16(2) and concerns the affairs of another person ie the Corporation. The document is an exempt document within the terms of section 38 of the Act.

  12. Documents B147 and B148, B162 to B175 and B178 to B211 are hard copies of computer files relating to the Corporation which contain information irrelevant to the affairs of the applicant. On the material before me I am uncertain as to whether these documents fall within the terms of section 16(2). That would need to be determined if I am wrong about relevance. There is one entry about a HECS payment made by the applicant in his capacity as accountant for the Corporation. In my view it remains the Corporation's information provided to the respondent.

  13. Documents B149 to B159 contain information provided by the Corporation to the Taxation Office. It is clearly information obtained within the terms of section 16(2). The respondent has granted access to the information relating to the applicant. The remainder of the documents are exempt within the terms of section 38 of the Act.

  14. Documents B176-177 and B212-213 are copies of two Taxation Office working papers relating to reconciliation of the Corporation's pay as you earn payments. As such, each is in essence information obtained from the Corporation which is within the terms of section 16(2) so that section 38 of the Act operates to exempt the document.

  15. Document C6 is a copy of a document obtained by the respondent's auditor from the Corporation. Information about the applicant is recorded in relation to membership of the AMP Superleader Plan. Information about other persons appears to have been deleted before the document was made available to the auditor but the document remains essentially a document about the affairs of the Corporation obtained by the respondent within the terms of section 16(2) and is therefore exempt within the terms of section 38 of the Act. While I remain of that view I note that the respondent has conceded access to part of the document.

  16. Documents C14/15, C18/19, C22/23 and C24/25 are copies of correspondence passing between the Corporation and its solicitors in relation to moneys owing to the Corporation by the applicant. Parts of the documents include matters of client privilege which, I am told, have not been waived by the Corporation. The documents essentially relate to the affairs of the Corporation and were obtained by the respondent's auditor in circumstances embraced by section 16(2). Some of the material is outside the scope of the applicant's requests and is therefore irrelevant. Taken as a whole I am satisfied that both of the copies of correspondence are information obtained by the auditor within the terms of section 16(2) so that section 38 of the Act applies to exempt the documents.

  17. Document C16/17 is a copy of a letter by the Corporation addressed to a public authority. It is also information obtained by the auditor within the terms of section 16(2). The letter makes several references to the applicant but is properly characterised as a letter about the affairs of the Corporation so that section 16(2) applies and section 38 exempts the document from access.

  18. Document C44 is a bad copy of a statement of account prepared by the Taxation Office in relation to the Corporation. It contains information about the taxation affairs of the Corporation, is within the terms of section 16(2) and therefore exempt within section 38 of the Act.

  19. Document C45 is a copy of a letter by the Taxation Office addressed to the Corporation and relating to the taxation affairs of the Corporation. The letter contains information obtained from the Corporation, is within the terms of section 16(2) and is exempt from access pursuant to section 38 of the Act.

  20. Documents C46/48 are a copy of the Corporation's accounting to the Taxation Office of group certificates issues by the Corporation for the period 1 July 1994 to 30 June 1995. The document sets out group certificate details relating to employees of the Corporation. I am satisfied it is also a document within the terms of section 16(2) and is exempt for access pursuant to section 38 of the Act. The applicant has been granted access to the details relating to himself.

  21. Documents C49-51 is a statement of tax payments made by the Corporation for the financial years 1994/95 and 1995/1996. It is a document prepared by the Corporation and sent to the Taxation Office. I am satisfied it relates to the tax affairs of the Corporation, is a document within the terms of section 16(2) and is exempt within the terms of section 38 of the Act.

  22. Document C52 is a copy of a bank statement relating to a bank account in the name of the Corporation. Clearly such a document in the hands of the Taxation Office is subject to section 16(2) and the copy document is exempt from disclosure within the terms of section 38. There is a handwritten notation on the document relevant to the applicant and the respondent proposes granting access to the notation and the entry on the bank statement to which the notation relates.

  23. Document C53-54 is a copy of a letter from the Corporation to a Deputy Commissioner of Taxation relating to the applicant's employment by the Corporation. It sets out certain information about the Corporation's group tax affairs including information relevant to the applicant's employment. The copy letter comes within the terms of section 16(2) and is exempt within the terms of section 38 of the Act. The respondent has granted access to those parts of the letter specific to the applicant.

  24. Documents E8, E9 and E10 are handwritten extracts of the Corporation's payroll sheets setting out payroll details of various employees of the Corporation. Except in so far as the applicant's details are shown the information is irrelevant to the applicant's claim. Each sheet is information acquired by the respondent within the terms of section 16(2) so as to make it exempt from access within the terms of section 38 of the Act. The applicant has been granted access to the information relevant to the applicant.

  25. The respondent has disclosed and granted access to a considerable number of documents on a file relating to the Problem Resolution Service ("PRS").  Document 28 is a hand written note in the form of an "aide memoire".While it relates generally to the applicant there is some information relating to the Corporation which comes within the terms of section 16(2). That information relates to the group tax affairs of the Corporation, is information within the terms of section 16(2) and is therefore exempt from disclosure. The respondent has granted access to the document subject to deletion of certain figures and words. I would have deleted further figures and words but will merely affirm the respondent's position.

  26. Document 44 of the PRS file is a further hand-written file note in the form of an "aide memoire".  The whole document appears to be relevant to the applicant's claim pursuant to section 38 in relation to comment disclosing whether or not the respondent holds certain documents. That is not information acquired by the respondent within the terms of section 16(2) so that section 38 of the Act does not apply. My reason for this conclusion is that the response itself is conclusive as to the non-operation of section 16(2). It is apparent that the comment is relevant to the applicant's claim, it is not apparent that any provision exempts the deleted words. The applicant should have access to all of Document 44 on the PRS file. That handwritten note formed the basis for input of information on the PRS electronic file. The same consideration and decision applies to the details dated "14.12.99" in that file.

  27. Folio 166 of the PRS file contains information based on Document 28 from the PRS file (para 52 above). The claim for exemption of certain words deleted relies on exemption under section 38. I agree, the information relates to the taxation affairs of the Corporation and is information within the terms of section 16(2) and therefore exempt within the terms of section 38 of the Act.

  28. The respondent's special audit file contains a two page internal memorandum dated 3 December 1998.  The respondent has granted access to those parts of the document considered relevant to the applicant's claim.  It claims exemption under paragraph 37(1)(b) for the substantive part of the hearing, exemption under section 38 for some information relating to the affairs of the Corporation with the balance being irrelevant to the applicant's claim.

  29. In my view the substantive part of the heading is outside the scope of the applicant's claim and is therefore irrelevant. I therefore differ with the respondent as to reason but not as to result. I agree that deleted portions said to be exempt under section 38 of the Act do relate to the affairs of the Corporation so as to be information within the terms of section 16(2).

  30. In so far as the respondent relies on sub-section 24(5) of the Act, I am satisfied that provision has effect to authorise a refusal to grant access to documents. The essence of the respondent's case is that the class of documents being sought are all documents which contain information within the terms of section 16(2) so that exemption under section 38 of the Act will apply to the documents. Being information within the terms of section 16(2), the character of the information does not change because identifiers are deleted. The information remains of the character of information to which section 16(2) applies.

  31. I agree with the relevant reasons for decision in Re Caruth and Department of Health (AAT 8781, 18 June 1993) that because of the essential character of the information to which access is sought and that information is information within section 16(2), then section 38 applies without the need to identify the documents to which access is sought.

  32. The formal decisions will be to set aside the decisions under review and remit the matters to the respondent to give effect to the concessions made by the respondent and these reasons for decision.

    I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member

    Signed:         .....................................................................................
      Associate

    Date of Hearing  5 March 2001
    Date of Decision  23 August 2002
    Applicant  In Person
    Respondent  Ms Campbell, of Counsel

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Cases Citing This Decision

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Stannard and Deputy Commissioner of Taxation [2003] AATA 406
Cases Cited

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Statutory Material Cited

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Kavvadias v Commonwealth Ombudsman [1984] FCA 179