Updated CRM for RTAs Part Three: ATIP & Information Requests

Reference Article (>5 Years Old)

One particular concern that claimants have with the Scientific Research and Experimental Development (SR&ED) program has always been accessing information regarding their claims, as well as greater transparency regarding information in their tax file. These concerns may partly be laid to rest with the updated sections of the CRM for RTAs that addresses the “Access to Information and Privacy”, and the various opportunities available to claimants who wish to gain access to their filed tax information for the betterment of practices.

In part three of our “Updated CRM for RTA’s”, we will briefly discuss:

• formal or informal requests for information by a claimant; and

• the type of information which may be released by the CRA upon receipt of request.

Read the first and second installments of this series here on SREDucation.ca: Part One: Updated Definitions and Part Two: First Time Claimant Review.

Access to Information and Privacy (ATIP)

Section 2.9.5¹ of the updated Claim Review Manual (CRM) specifically delineates the laws which determine the scope of information that may be accessed by a claimant.

The Access to Information Act deals with the rights of access by the public to information under the control of the Government of Canada. The Privacy Act protects personal information and gives individuals rights of access to their personal information held by the government.

The CRM also explains that an RTA’s handling of an ATIP request is affected by (a) the file’s status, and (b) whether the claimant’s request is made formally or informally:

Claimants can make a formal ATIP request for information in their tax file, or informally by simply asking the RTA or their manager. According to the Access of Information and Privacy Directorate, the informal method is considered to be the preferred method of access for claimants to their tax file, and a response should be provided if possible. The response depends on whether the file is currently under review or not.

If an SR&ED file is currently under review, informally requested information may be disclosed after a proposal letter is issued to the claimant.

All ATIP and informal information requests should be coordinated through the RTA’s manager to ensure consistency in handling them. Most of the TF98 file and the audit file could be released to claimants after the review is completed, but some important information must not be released.²

Release of Information under the Privacy Act and Access to Information Act

Privacy Act

The Privacy Act (PA) discusses Rights of Access available to any Canadian citizen attempting to view information in their tax file.

12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to

    1. any personal information about the individual contained in a personal information bank; and

    2. any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.

13. (1) A request for access to personal information under paragraph 12(1)(a) shall be made in writing to the government institution that has control of the personal information bank that contains and shall identify the bank.

    (2) A request for access to personal information under paragraph 12(1)(b) shall be made in writing to the government institution that has control of the information and shall provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution[3. Government of Canada. (30 July, 2015). Right of Access and Requests for Access. In Privacy Act (R.S.C, 1985, c. P-21) (Clause 12 & 13). Retrieved November 21, 2015, from http://www.laws-lois.justice.gc.ca/eng/acts/P-21/page-5.html#h-11].

Access to Information Act

The Access to Information Act (AIA) supplements the PA by outlining the response that claimants can expect when making an access to information request.

7. Where access to a record is requested under this Act, the head of the government institution to which the request is made shall, subject to section 8, 9 and 11, within thirty days after the request is received,

6. 1. give written notice to the person who made the request as to whether or not access to the record or a part thereof will be given; and

   2. if access is to be given, give the person who made the request access to the record or part thereof³.

10. (1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a)

    1. that the record does not exist, or

    2. the specific provision of this Act on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed,

    and shall state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal.

    (2) The head of a government institution may but is not required to indicate under subsection (1) whether a record exists⁴.

Examples of Information that Can and Cannot be Disclosed

The updated CRM contains specific examples of the type of information that the CRA would release upon request, including:

• T2020, financial report and SR&ED review report;

• external and internal correspondence, including memoranda, appropriately severed where necessary;

• related correspondence with headquarters (for example, technical interpretation requests or opinions and referrals); and

• audit working papers, excluding third-party information, leads, disclosure of audit techniques, and information from informants.⁵.

The Claim Review Manual also goes on to then specify the type of information which cannot be released. These include:

• business numbers, names and addresses of secondary files;

• information obtained in confidence during an audit that may prejudice the results of the audit, such as Criminal Investigation reports, Royal Canadian Mounted Police reports, or documents obtained as part of an investigation;

• audit verification techniques and specific audit guidelines;

• information about investigations in progress when a decision is pending;

• documents of a related file under investigation;

• confidential information about another taxpayer;

• Department of Justice correspondence and information under solicitor-client privilege, including legal opinion from the Legal Services Branch. For more information, go to “Disclosing legal opinions” and “Use of legal opinions inside the Agency” on the Legal Services Branch Guidelines webpage;

• accounts of consultations and deliberations involving officials or employees of a government institution or minister of the Crown that if disclosed, may reasonably be expected to cause injury or restrict the CRA’s ability to administer the Act;

• copyrighted material; and

• printouts from CRA computer systems. Instead, transcribe relevant information from the printout and include in a letter to the claimant⁶.

Access to Information & Privacy: The Verdict

The ability to request file information from the Canada Revenue Agency is of great use to the majority of claimants. However, claimants were often confused by the CRA’s former approach to requests for information.

The addition of these new sections to the Claim Review Manual for Research & Technology Advisors not only gives claimants a view of the established procedures which regulate requests for information, but also bolsters a claimant’s belief that the CRA will stand by its published guidelines and aid claimants with their requests for information as and when necessary. In particular, claimants will benefit from access to an RTA’s technical interpretations that may have resulted in an unexpectedly negative review of an SR&ED claim.

This article is based on CRA policy documents available at the date of publication. Please consult the CRA website for the most recent versions of these documents.

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