Decision Letter.pdf

Steven Allen (on behalf of Greg Allen)

By Email Only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Our ref:  1-U1CJXHJ



Date:  25 July 2022

Dear Mr Allen

Freedom of Information Act 1982 – Notice of Decision

I refer to your request for documents under the Freedom of Information Act 1982 (FOI Act),
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received by the Australian Taxation Office (ATO) via the ‘Right To Know’ website on 29 June
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2022.

I am an officer authorised under subsection 23(1) of the FOI Act to make decisions in relation
to FOI requests.

Summary

In your FOI  application, you  requested  “…  separate BAS Statements for the following 3
companies, David Baldwin and Family being the sole proprietors of which:

* DWB Earthworks
* Site Services
* Bude Investments”

You included a link to a Youtube video, for “frame of reference”. This video was not available
to view at the time I received your request.

You further advised that “David and family owe myself quite a bit of money in relation to
projects which I have funded and have sacrificed my retirement and savings. I have also have
loss of legal funds trying to pursue this matter further.”

Decision

I must refuse access to the documents you have requested under section 38 of the FOI Act.
The reasons for my decision are detailed below.

Material taken into account

I have taken the following material into account in making my decision:
•  the terms of your request;
•  FOI Act;
•  Taxation Administration Act 1953 (the TAA); and
•  the guidelines issued by the Australian Information Commissioner (OAIC) under
section 93A of the FOI Act.

Section 38 – Documents to which secrecy provisions of enactments apply

Section 38 of the FOI Act exempts documents, or parts of documents, from release where
disclosure of the document, or information contained in the document, is prohibited under a
secrecy provision listed in Schedule 3 to the FOI Act. Section 355-25 of Schedule 1 to the
TAA is listed in Schedule 3 to the FOI Act.

Protected information

Section 355-25 of Schedule 1 to the TAA makes it an offence for a taxation officer to disclose
protected information to an entity, other than the entity to whom the information relates or to
an entity covered by subsection 355-25(2).

‘Protected information’  is defined in subsection 355-30(1) of Schedule 1 to the TAA as
information that was disclosed or obtained under or for the purposes of a taxation law, which
relates to the affairs of an entity, and that identifies, or is reasonably capable of being used to
identify, the entity.

Your request seeks access to the Business Activity Statements (BAS) of ‘DWB Earthworks’,
‘Site Services’, and ‘Bude Investments’. I consider that such information is protected
information within the meaning of subsection 355-30(1) of Schedule 1 to the TAA, in that any
such BAS would contain information about the entities, would identify them, and would have
been disclosed or obtained under or for the purposes of a taxation law.

Disclosure of protected information about an entity (‘primary entity’) may be made to its
‘covered entity’ as defined in subsection 355-25(2) of Schedule 1 to the TAA. A ‘covered
entity’ may include, for example, the primary entity’s tax agent, its public officer or a legal
practitioner representing its affairs in relation to taxation laws.

I am satisfied that you are not a ‘covered entity’ as defined in subsection 355-25(2), for any of
the companies whose protected information you have sought.

As such, it would be an offence for me to release protected information about these entities,
to you.

Accordingly, I have determined that any documents that fall within the scope of your request
must be exempt from release, under section 38 of the FOI Act.

Your review rights

If you are dissatisfied with my decision, you may apply for internal review or Australian
Information Commissioner review. I encourage you to seek internal review as a first step as it
may provide a more rapid resolution of your concerns.

Internal review
Under section 54 of the FOI Act, you may apply in writing to the ATO for an internal review of
my decision. The internal review application must be made within 30 days of the date of this
letter, quoting our reference number at the top of this letter, and be lodged in one of the
following ways:
email:
xxx@xxx.xxx.xx
post:
Australian Taxation Office
General Counsel
GPO Box 4889, Sydney NSW 2001

Where possible please attach reasons why you believe review of the decision is necessary.

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The internal review would be carried out by another officer within 30 days. If you have not
been informed of the outcome of the review within that time, you may apply to the Australian
Information Commissioner under section 54L of the FOI Act.

Australian Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner
to review my decision. An application for review by the Australian Information Commissioner
must be made in writing within 60 days of the date of this letter, and be lodged in one of the
following ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
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email:
xxxxx@xxxx.xxx.xx
post:
GPO Box 5218, Sydney NSW 2001

Visit the OAIC website, https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/, for more information about Australian
Information Commissioner review.

Complaints
Any complaint about the processing of your FOI request can be forwarded to the OAIC.  The
complaint needs to be in writing and identify the agency against which the complaint is made.
There is no particular form required to make a complaint, however using the online form is
preferable.
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA
_1
email:
xxxxx@xxxx.xxx.xx
post:
GPO Box 5218, Sydney NSW 2001

The OAIC can be contacted on 1300 363 992.

Yours sincerely,

H Burton

H Burton
Lawyer
General Counsel

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