Public Interest Disclosures: principles to follow: necessity and proportionality
As specified in the guidance on making Public Interest Disclosures at IDG60233 (general instructions) and IDG60234 (Individual Instructions), disclosures may only be made under any type of instruction where you are satisfied that:
- there is a need to make the disclosure in the public interest; and
- the disclosure is proportionate to what you are seeking to achieve by making it.
This section provides guidance on the factors that you should consider when making these judgements.
In considering the need to disclose, the key points are:
- whether the disclosure fits the approved purposes for which public interest disclosure may be made, which are national security; public health or public safety; or the prevention or detection of crime. And;
- whether failure to disclose would damage these purposes.
- In the case of disclosures to professional regulatory bodies under Section 20(3) only, whether the disclosure would contribute to the purpose of preventing misconduct in relation to a HMRC function by a member of that profession.
In all cases you need to consider:
- whether the recipient of the information has a valid interest in the information in carrying out their public functions;
- whether the information you hold would enable the recipient to carry out their functions more effectively.
Remember that the test here is public interest. So it would not be sufficient to disclose simply in order to make life easier for HMRC or the recipient, for example by making the administration of a function easier. Rather, there must be a genuine public benefit from the disclosure, such as greater effectiveness in combating crime or benefits in terms of public safety.
You should also consider whether the disclosure permits HMRC to more effectively carry out its functions. It will not be essential that this test is met, however, as a disclosure may be made to assist the recipient without resulting in a direct benefit for HMRC. But you must always consider whether the disclosure could be contrary to the public interest in relation to HMRC functions (for example, if it would compromise the ability of HMRC to properly administer its functions). In such a situation, you should not disclose the information. Seek guidance from your Data Guardian if in doubt.
The outcome of this consideration will need to be reflected in the ‘purpose of the disclosure’ element in the record keeping requirements set out at IDG60240.
The first point to consider on proportionality is whether the public interest in making the disclosure outweighs the rights to privacy of the subject or a third party under Article 8 of the European Convention on Human Rights (see IDG40140). This reflects the need to balance the sensitivity of the information considered for disclosure against the seriousness of the ‘wrong’ that the disclosure is intended to address.
As a rule of thumb, the more sensitive the information the more severe the likely challenge in justifying its disclosure. For example, details of an individual’s income would be very sensitive, and their disclosure would therefore be very difficult to justify as proportionate. Indeed it is expected that such information would not normally be disclosed under the terms of public interest disclosure.
By contrast, the disclosure of information relating to smuggling, such as details of arrests and seizures, is likely to be more readily justifiable as proportionate due to its clear links to the prevention and detection of crime, which are likely to result in a stronger public interest in making the disclosure.
This is particularly so for general trend information and other information not linked to an identifiable individual (for example, statistical information relating to seizures, or general, non-case specific, information about new smuggling practices). Similarly, information such as basic identifiers relating to an individual (for example, a name, address, date of birth and short description of the nature of HMRC’s interest in a suspect, shared with other agencies, to allow their movements to be notified to HMRC, but without additional, more sensitive information about convictions or other matters) - are likely to be more readily justifiable than more sensitive personal details.
Disclosure of information specified in the general instructions at IDG60234 is likely to be justifiable as proportionate provided that it can be properly linked to one of the approved purposes set out above.