Looking For a Needle in a Haystack…
Those of you who follow our blogs might recall we commenced a Freedom of Information (FOI) campaign with both the ATO and Treasury a full year ago to develop a deeper understanding around the issues we face with an intent to use this information to inform future policies and actions (see Behind the Curtain – FOI Requests, Nov 2017).
In practice, exercising our Freedom of Information rights became a much more involved, complex and time consuming process than initially envisioned. Along the way we learned a great deal about the FOI process and challenges in obtaining useful information. Although the information we obtained wasn’t the insightful contextual documents we had hoped for, we still gained some information and insights along the way.
I’ve split this blog into two parts to keep the length down
- Part 1 – Challenges and pitfalls – Our journey through the FOI process
- Part 2 – What did we learn and what steps might we consider next?
We closed out our FOI request to the ATO in an earlier blog (What did we learn from our ATO FOI request?, Feb 2018). The ATO was asked to provide available summary information regarding the scale of reporting on Australian accounts held by ‘US Persons’ to the US IRS as required by the FATCA Intergovernmental Agreement. Pleasingly, the ATO quickly provided us a raw summary dataset on their FATCA reporting. Most interestingly, Australia appears to be more transparent than other democracies in this area. After learning of our FOI request, campaigners in several other democratic countries having FOI laws attempted to obtain similar information and all have had their information requests refused based on exemption grounds relating to international relations!
Resolving our FOI requests to Treasury, on the other hand, proved much more challenging! To recap, we made three separate FOI requests to Treasury way back in November 2017:
- Our first request targeted information to help us understand the Australian context and framing behind the current (2001) Tax Treaty,
- The second request sought information on whether there was any discussion and consideration of US tax treatment of Australian superannuation in the companion social security (totalisation) agreement, and
- The third and final request asked for information around what actions, response or close-out were made by Treasury regarding the 2012 submission on FATCA made by the Australian Privacy Commissioner, including the non-binding recommendation that a full Privacy Impact Statement be conducted prior to any FATCA legislation.
Typically, FOI requests are resolved within a statutory 30 day period. Little did we know when we started that it would take a full nine months before all three requests to Treasury were formally closed-out, unfortunately with less ideal outcomes than we had hoped for.
The FOI Act only pertains to information contained in a document held by Government and most governmental agencies. The definition of a document is perhaps too broad and, certainly in our case, created major challenges in identifying specific information we were after in the sea of available information. Our FOI act also provides for nine exemptions; the exemption provision for documents affecting international relations was an area of major concern for us going into this campaign (recall this is the stated reason that tax reporting agencies in other countries, unlike the ATO, have declined to provide FATCA reporting statistics under FOI) although we never really got to the stage where this was tested by approving authorities.
Another hurdle to surmount proved to be “practical refusal” which is used to avoid overly burdensome requests. Our FOI legislation allows for agencies decline to satisfy requests (practical refusal) that “would substantially and unreasonably divert the resources of the agency from its other operations”. Practical refusal proved to be *the* major challenge and impediment in our situation.
Finally, FOI legislation provides a “user-pays” cost recovery mechanism for processing FOI requests. Although this was an initial concern, it did not end up becoming an issue in this FOI campaign.
Overall, we ran into three major pitfalls while working through Treasury on our FOI requests, particularly in regards to the tax treaty framing documents:
- Tax Treaty organisational accountability has changed over the years from the ATO to Treasury
- Older paper records are poorly indexed and often in inaccessible archive sites
- Difficulties in narrowing down documents based on electronic keyword searches
Let’s take each of these in turn.
Although Treasury currently has tax treaty accountabilities and, in fact, maintains a specific International Tax Treaty Unit, we learned the ATO was the legacy accountable agency back when the Australia –US Tax Treaty was signed in 2001. As such, Treasury has limited files from the critical period when the treaty was negotiated. It may be that the ATO would have independent filing records from this time but this would need to be the subject of a new FOI request with a likely low chance of success.
The ATO did provide Treasury with their Tax Treaty files in 2002, however, these consisted of hard copy files (3800 pages!) organised in chronological order but with almost no contextual / metadata describing the file contents. As such, the files would have to be physically retrieved and manually reviewed page by page leading to – you guessed it! – practical refusal.
We then thought we might have better results by amending the relevant date range / subject / keyword requests so that Treasury could conduct keyword searches of their electronic database systems. The problem here is that despite attempts at ever tightening keyword and email domain restrictions, the searches turned up large document counts which would ultimately lead to practical refusal. The frustrating part of this process was that we were not permitted to see the search listing results. Imagine if you used Google and needed to refine your search terms to only return five or less documents yet each time you updated your search, all you got back was a document count! Without insider knowledge on processes and documents, this truly is an exercise in looking for a needle in a haystack!
Ultimately, after months of iteration and discussion back and forth with Treasury, our requests were either withdrawn by us or formally rejected under grounds of practical refusal. Nevertheless, I do wish to complement Treasury FOI staff on actively engaging and working with us through this process as no doubt it would have been much easier to simply deny our request on administrative grounds than taking the time to work with us.
You now have some idea why this campaign took so many months and ended up delivering less insightful information than we had hoped for!
However disappointing this outcome was to us, it doesn’t mean that we came up empty handed. Over the months of back and forth dialogue and even the odd teleconference, we gained some knowledge and insights. In Part 2, we’ll discuss these learnings and possible next steps.