This article considers a taxpayer’s rights to make an FOI request to obtain information from the ATO in respect of their tax affairs. We discuss who can and how to lodge a request, the likely associated timing and costs, what information is excluded and the review options if you are dissatisfied.
Note that this article focuses on the Commonwealth Freedom of Information Act 1982 (Cth) (FOI Act) and we do not cover the separate legislation that applies in each state or territory in relation to FOI requests.
Who can make an FOI request?
The starting point is that under the FOI Act a person (which includes an individual and a company) can make an FOI request in respect of a government agency.
Naturally there are some limits to FOI requests. For example, the ATO will not release protected information in relation to a taxpayer unless the person requesting it has the requisite authority, in accordance with the tax law secrecy provisions in Division 355 of Schedule 1 of the Tax Administration Act 1953 (Cth) (TAA). Broadly, the ATO will not disclose protected taxpayer information unless the person requesting it is the actual taxpayer or is an authorised contact of the taxpayer such as the tax agent or a legal representative of the taxpayer.
What about for companies and corporate trustees?
For companies and corporate trustees, the ATO recognises the authority of public officers, directors or other authorised contacts as well as representatives such as lawyers and tax agents, to submit FOI requests.
Where an agent or lawyer submits an FOI request, they must provide a signed authority from the individual or entity they are representing to prove their authorisation. Evidence of authority to request the information may include a copy of the constitution and a company resolution detailing the authorisation of the individual.
What information can you request?
Every taxpayer has a right to access ATO documents unless an exemption applies. Typical documents that can be of use in tax and self managed superannuation fund (SMSF) related disputes may include:
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Case notes and internal file records.
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Internal and external correspondence (including emails) about the taxpayer or issue.
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Internal guidance and operational material applied to the decision.
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Court and tribunal documents held by the ATO that relate to the matter.
You do not need to lodge an FOI request for copies of your own lodged forms (eg, tax returns, notices of assessment, payments summaries, etc). These are generally available via the MyGov site for individuals or ATO Online Services or Portal for corporations.
How to apply
The ATO provides an FOI form on their website. See https://www.ato.gov.au/forms-and-instructions/freedom-of-information-request-individuals-and-businesses.
Receiving the correct documents can be a lengthy process and it is highly recommended that as much detail to identify the type of information you are seeking is provided to ensure the ATO handles the request efficiently with minimal cost and time.
Timing and charges
The standard decision period is 30 days from the date of submitting a valid request. If the ATO is required to consult third parties, an automatic extension of another 30 days will be applied, and further extensions may be granted on top of this time period where a matter is particularly onerous. Considerable time might be involved with some requests, so it is best to allow for more than the standard time periods.
Submitting an FOI request requires no application fee. Similarly, there are no processing fees if you seek documents containing only your private information. However, for other requests, the ATO may issue a charge notice. This must be paid before the documents are retrieved. If you are unable to pay this charge, you can seek a reduction or waiver if you feel you have special circumstances.
Possible outcomes of an FOI request
As expressed earlier, information may be excluded or redacted especially if the request contravenes the ATO’s disclosure criteria under the tax secrecy provisions of the TAA. Additionally, any information that is covered by legal professional privilege might be excluded or redacted.
Where requested information includes personal information, sensitive business or commercial information, or other materials covered by a determination made by the Australian Information Commissioner, it may be excluded from release if its disclosure is deemed unreasonable. If the extent of redactions necessary to avoid unreasonable disclosure is too excessive, the ATO may choose to exclude the information altogether from being released.
Conclusion
You should be aware of the above benefits and limits on what information may be accessed under the FOI Act. You also need to consider the time and cost of making a request. However, a successful FOI request might reveal some information such as information that you were not otherwise aware of including internal ATO communications that could prove valuable in a tax or SMSF dispute with the ATO.
