UK FOIA requests - Spy Blog

HM Revenue & Customs

[name of civil servant]
Corporate Governance
04/52/nnn
100 Parliament Street
London SW1A 2BQ
Tel 020 7147 nnnn
Fax 020 7147 nnnn
Email [name of civil servant]@hmrc.gsi.gov.uk
www.hmrc.gov.uk

[name]
[address]

Date 6 March 2008

Our Ref FOI 1075/08
Your Ref

Dear [XXX]

By email on 28 January 2008, you made the following request under the Freedom of
Information (FOI) Act:

“1) Please list these special "categories of individual for whom security is a higher priority".

2) Approximately how many people are in each special category?

3) Who exactly makes the decision to put someone into one of these special
categories?

4) When, if ever, is an individual removed from such a special category?

5) Does a special category extend to an individual's family as well?

6) How long has this policy of special categories been in place?

7) Who exactly authorised this special category policy?

8) How exactly does adding an extra digit to a tax code or other special markings to a paper tax return, make it less of a target for human snooping or electronic sniffing of the data once it is in digital form ? Surely this contravenes the well established security principles for handling "sensitive" data whilst it is sharing common office or electronic network infrastructure i.e. that it should be indistinguishable from the rest of the data or documents, to reduce the temptation to casual snoopers?

9) What about the previous 24 year tax record history of an individual, before they became a "celebrity" or politician etc.?

10) Are these special category tax records included in the datasets handed over, through the statutory gateway, to the DWP Longitudinal Study?
http://www.dwp.gov.uk/asd/longitudinal_study/ic_longitudinal_study.asp

11) What is the approximate annual cost of the extra infrastructure and personnel resources needed to handle these special categories?”

Using your numbering, I have set out below our response to your request.

In considering our response we recognise that the Financial Secretary to the Treasury in her Parliamentary oral answer of the 24th January indicated that there were categories of individuals, including Members of Parliament, for whom different arrangements operate. For items 1), 2), 3), 4), 5) and 9) of your request, I confirm that we hold information within the scope of your request, but this information is exempt from disclosure by virtue of the exemptions at Sections 23, 36 (2)(c) and 38 (1) (a) and (b) of the FOI Act.

Some of the information is exempt under section 23 because either it was directly or indirectly supplied to HMRC by, or relates to, a body specified in section 23(3). Section 23 is an absolute exemption and I am not required to consider the public interest test.

Section 23: Information Supplied by, or Related to, Bodies Dealing with Security Matters

• (a) the Security Service,
• (b) the Secret Intelligence Service,
• (c) the Government Communications Headquarters,
• (d) the special forces,
• (e) the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000,
• (f) the Tribunal established under section 7 of the Interception of Communications Act 1985,
• (g) the Tribunal established under section 5 of the Security Service Act 1989,
• (h) the Tribunal established under section 9 of the Intelligence Services Act 1994,
• (i) the Security Vetting Appeals Panel,
• (j) the Security Commission,
• (k) the National Criminal Intelligence Service, and
• (l) the Service Authority for the National Criminal intelligence Service.

NCIS has now merged into SOCA

The information is exempt under section 36(2)(c) because to release this information would or would be likely to prejudice the effective conduct of public affairs. In accordance with the requirements of section 36, two Commissioners of HM Revenue and Customs have considered your request alongside the information held and concluded that, in their reasonable opinion, disclosure would, or would be likely to, cause the prejudice described in section 36(2)(c).

It is absolutely necessary for HMRC to have in place operational arrangements that adequately take account of additional risk factors facing specific individual customers because of their circumstances. We have given very careful consideration to making a partial disclosure of some of the information requested but in our view, to release any information describing these arrangements would diminish the protection afforded by them as it would provide details that would or could be of use to someone intent on undermining or circumventing those arrangements. Therefore, disclosure of this information would prejudice our ability to operate these arrangements effectively.

Such a blanket ban on general category information, rather than anything which could specifically identify an individual, is not the presumption of Freedom of Information which is the Law.

Some of the information requested is also exempt under section 38(1)(a) and (b) because its disclosure would, or would be likely to, either;

(a) endanger the physical or mental health of any individual or
(b) endanger the life and safety of an individual.

This is because the information you have requested relates to the nature of additional safeguards that HMRC puts in place to protect information relating to certain individual customers and releasing it could provide details of use to someone seeking to target those individuals. Those additional safeguards are put in place where disclosure of information, or of the arrangements for handling information, relating to those individuals, would put the individual at increased personal risk and/or would present a security risk. It is also our view that releasing this information could cause distress to individuals covered by these arrangements as it could lead them to believe that their personal safety is being compromised by the disclosure.

This is another example of a Government Department or public body trying to claim an exemption under "Health & Safety", which has got nothing to do with anything which comes under actual Health and Safety laws or regulations, and which poses no actual risk to any identifiable individual.

How would the disclosure of a general category of people, for example "Members of Parliament", invoke this exemption about identifying individuals who are getting special treatment in the handling of their tax returns ?

Section 38: Health And Safety

The section 36 and 38 exemptions are qualified exemptions and I am required to consider the public interest test.

Technically, if the consideration of the Public Interest was going to take longer than the 20 working days, then HMRC should have responded with the information which was either free to be disclosed, or to mention which of the absolute exemptions they were making use of. They would have had another period of time, not specified in the Act, but according to the Information Commissioner's Guidance another 6 weeks or so, to consider the Public Interest test.

Section 36: Prejudice To Effective Conduct Of Public Affairs

There is clearly a public interest in our procedures being transparent and generally understood. This facilitates the proper public scrutiny of our systems and procedures, which in turn helps to promote high standards of performance and governance. We also recognise that there is a legitimate public interest in ensuring that effective security arrangements are in place for all taxpayers, not just those whose circumstances give rise to additional risk from disclosure of information.

We are also of the view that there is a strong public interest in non-release of the further information you ask for. There is a very strong public interest in ensuring that:

• HMRC has in place operational arrangements that adequately take account of additional risk factors facing certain individual customers.

• That these arrangements are not undermined by full or partial disclosure of information related to the operation of these arrangements because to do so would prejudice both the effective operation of these arrangements and potentially result in the increased risk of harm to some of those included in the arrangements - which cannot be in the public interest

• Individuals included in these arrangements are not put at risk by the disclosure of this information

• That individuals included in these arrangements are not distressed by the publication of information about these arrangements.
  

It is also relevant to note that the statement by the Financial Secretary to the Treasury on 24th January (to which you refer in your request) satisfies, at least in part, the public interest in disclosure of this information. For all of the above reasons, I believe that the balance of the public interest is very clearly in favour of withholding this information. In relation items 8), 10) and 11) of your request, our responses are as follows:

Item 8): All Self Assessment Unique Taxpayer References comprise 10 digits.

That is does nothing to address the Question 8 concerns i.e. that by special marking, there is a reduction in the security of people in the Special Categories, as their tax returns stand out from the masses. The media reports claimed that there was an extra digit on the tax code of the people who were in these Special Categories.

All that this statement says is that people with 10 digit tax codes have tax codes 10 digits long - it says nothing about those who are dealt with separately.

Item 10): No, the data is not included in transfers.

Is it legal to withhold such data from the Department for Work and Pensions, under the the Employment Act 2002 Schedule 6 legislation, which set up the statutory gateway between the two department, the so called DWP Longitudinal Study ?

One of the supposed uses of this Longitudinal Study is to combat Social Security Fraud. Does that mean that one of the perks of people in the the Special Categories is that they can commit such frauds with little risk of detection ?

Item 11): This information is not held. The resource and infrastructure costs for supporting the arrangements for handling records within these arrangements are not disaggregated within the overall costs of HMRC’s operations.

Information provided outside of FOI

For items 6) and 7) of your request, I confirm that we do not hold information. However, I am prepared to answer your questions outside of FOI as this may be of assistance to you. This is a long-established HMRC (and former Inland Revenue) practice and we do not hold recorded information about its origins. However, such a practice would have received authorisation at senior level.

These two tidbits of information, show that there does not seem to be any transparent audit trail of major policy decisions by senior "faceless bureaucrats" within HMRC.

How do they know that they are actually complying with the Policy on Special Categories, if there are no records about who originally authorised it, and who has currently re-iterated that policy ? How can the public be re-assured that this Policy has not deteriorated into wasteful bureaucratic red tape, and function creep, and is now being applied to far more people than was originally intended ?

How can the public be sure that all the people who are "at risk" are actually being dealt with by HMRC under their Special Category procedures ? Unless, say, a battered wife who has fled her family home to escape a violent partner, or the social and charity workers who may be assisting her actually know that a battered wives category exists, for example, and that she should be entitled to HMRC Special Category status, then how exactly will HMRC officials ever be informed about such a person ?

Why this revelation is deemed to be "outside" of the Freedom of Information is a mystery. Perhaps what is meant is that it is outside of the FOIA list of exemptions, and so it has been disclosed.

It is illegal for a Government Department or any other public body to use the limited exemptions under FOIA as if they were a blanket exemption, they need to show that they have evaluated such exemptions on a case by case basis.

If you have any queries about this letter, please contact me. Please remember to quote the reference number above in any future communications.

If you are not happy with this reply you may request a review by writing to HMRC FOI Team, Room 4/52, 100 Parliament Street London SWIA 2BQ. You must request a review within 2 months of the date of this letter. It would assist our review if you set out which aspects of the reply concern you and why you are dissatisfied.

If you are not content with the outcome your complaint, you may apply directly to the Information Commissioner for a decision. Generally, the Information Commissioner cannot make a decision unless you have exhausted the complaints procedure provided by HMRC.

He can be contacted at The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Yours sincerely

[name of civil servant]