Public Interest Disclosures: introduction
This guidance concerns the disclosure of HMRC information in circumstances where there is no appropriate statutory gateway, but where the public could reasonably expect HMRC to disclose information (for example, in order to meet legitimate public concern, or to prevent harm to the public) - so called ‘public interest disclosures’.
In the past, HM Customs & Excise exercised implied powers to disclose information in the public interest, mostly in the law enforcement area. Those arrangements for public interest disclosures ceased immediately with the formation of HMRC. This guidance sets out the current rules for disclosing in the public interest and must be followed in every case.
Your ability to disclose HMRC information to anyone is restricted by the Commissioners for Revenue and Customs Act 2005 (CRCA). Only by acting in accordance with the provisions of CRCA are you using HMRC information in a lawful way. Sharing information with anyone in a way that is not covered by the CRCA means that you may personally be liable to a criminal sanction (see IDG40130).
HMRC has a statutory authority (at Section 20 of CRCA) to disclose information in certain prescribed circumstances, where such a disclosure would be in the public interest. This statutory authority replaces previous arrangements in HM Customs and Excise for disclosure in the public interest.
The authority to make Public Interest Disclosures is narrowly drawn and very specific in what it covers. Disclosures may only be made in the limited circumstances and to the recipients set out in CRCA, described at IDG60232. It should be noted that such disclosures will be made almost entirely while carrying out former HM Customs and Excise functions - disclosures while carrying out former Inland Revenue functions will be rare. The CRCA authority to make Public Interest Disclosures also requires certain procedural safeguards to provide an audit trail of disclosure and to protect against wrongful disclosure.
Because the limits within which disclosure may be made in the public interest are clearly set out in law, it is essential that those parts of HMRC that make such disclosures familiarise themselves with and follow this guidance. This is necessary to ensure that any disclosure falls within what is permitted by CRCA and goes no further. Making any unlawful disclosure of HMRC information could constitute a criminal offence punishable by a fine, a prison sentence or both (see IDG40130). It is also important to ensure that the procedural rules are followed carefully.
HMRC information disclosed in the public interest must not be further disclosed by the recipient without the consent (either general or specific) of the Commissioners of HMRC, although such consent may be delegated e.g. the onward disclosure of intelligence handled under certain codes on a 5x5x5. Onward disclosure without consent may constitute a criminal offence. Any potential recipient of HMRC information should be made fully aware of this restriction before information is disclosed.
The flowcharts at IDG60251, IDG60252 and IDG60253 provide you with a step by step guide as to the procedures and record keeping requirements that must be followed before a public interest disclosure may be made. The flowcharts contain references to the appropriate section of this guidance for each step of the process, to which you must refer. You should follow the flowchart when considering a public interest disclosure.