Introduction: The Access to Information Act And The Privacy Act
An Access to Information and Privacy (ATIP) request, also referred to as Access to Information and Personal Information request, allows a Canadian taxpayer to exercise his or her right to access records of government institutions, including personal information held by government institutions. The ATIP requests are governed by two different federal legislations: the Access to Information Act and the Privacy Act. The Access to Information Act provides individuals, who are Canadian citizens or permanent residents, or are present in Canada, and corporations present in Canada the right to seek access to federally controlled information and records, including importantly for Canadian taxpayers’ records held by the Canada Revenue Agency. The Access to Information Act aims to complement other policies and procedures to make government information publicly available, such as open government initiatives and proactive disclosure of travel and hospitality expenses, contracts and other frequently-requested information. The Privacy Act provides individuals present in Canada and any Canadian citizens the right to seek access to their personal information held by the federal government. Specifically, the Privacy Act governs the collection, use, disclosure, retention and disposal of personal information, which gives individuals a limited right of access to personal information about themselves held in the files and systems of federal government institutions and certain other organizations established by Parliament.
For tax purposes, taxpayers generally need to submit requests under the Access to Information Act, if they need to access information concerning any activities or notes of the Canada Revenue Agency (CRA). A request under the Privacy Act will only be able to access information concerning the taxpayers themselves but not any actions taken by federal government institutions or agencies.
The results of an ATIP request may be received either electronically or by mail. If applicable, a requestor may be able to make arrangements with the government institution, via an Access to Information and Privacy Coordinator, to view the relevant records in person.
Records are normally provided only in the language in which they were created and may be translated into either French or English pursuant to the ATIP request. Requests for translation into other languages are subject to limitations and will only be accepted if the government institution considers that a translation would be in the public interest. If the records already exist in the other language, the records will be provided to the requestor as requested.
Who Can Apply for An ATIP Request Under The Access To Information Act
A person who intends to file a request under the Access to Information Act must be a Canadian citizen or a permanent resident or have an address in Canada in order to make an Access to Information request. Canadian citizens and permanent residents who are living abroad will be required to provide proof of citizenship or permanent residency in order to receive the information they are seeking. However, a Canadian citizen or a permanent resident does not need to be physically present in Canada when submitting an ATIP request.
If a person is not a Canadian citizen or a permanent resident and would like to submit an ATIP request while being outside of Canada, he or she will have to do so through a representative that is a Canadian citizen, a permanent resident or has an address in Canada.
Corporations and other entities with a Canadian presence also have the right to make an ATIP request. However, when submitting an ATIP request, there must be a designated individual who represents the Corporation or the entity and is either physically present in Canada or a Canadian citizen/permanent resident.
How Long Does It Take For An ATIP Request To Be Processed?
Government institutions generally have 30 days to respond to an Acccess to Information request. For a request made under the Access to Information Act, an extension beyond the original 30 days may be allowed if the request involves a large number of records, or if consultations with other government institutions or third parties are necessary. If an extension is required, the government institution responsible for the ATIP request needs to notify the requestor within the 30-day deadline with reasons for the required extension.
What Information May Not Be Available from An ATIP Request?
Under the Access to Information Act and the Privacy Act, not all information can be released for various reasons. Some information needs to be withheld to protect important democratic values, such as national security considerations, or to protect the privacy of personal information. Certain kinds of information can be expressly excluded by the legislations. For example, information that is already publicly available, publications or material collected in libraries and museums, as well as Cabinet confidences, fall into this category. There are also exemptions permitted or required from the release of information on national security, law enforcement, trade secrets, personal information, and advice to the Ministers.
At times, records that respond to an ATIP request may not exist; or may not be under the control of the government institution that receives the request. If another federal government institution is in possession of the relevant records, the ATIP request may be transferred to that institution. Such transfers only occur between federal government institutions. Requests cannot be transferred if the records are under the control of provincial or municipal governments or of private institutions, such as commercial banks and credit bureaus. The limit on inter-governmental communication also implies that records exclusively held by provincial or municipal government or private institutions will not be available for an ATIP request. If you are uncertain whether the information you are requesting for your tax matters can be obtained from an ATIP request, please contact our expert Canadian tax lawyers for advice specific to your case.
What Should Be Done If There Are Errors Shown In The Results?
If a requestor believes that there is an error in the information a government institution has on file or that some information is missing, the requestor may request the government institution to have it corrected. If the institution shares the same opinion with the requestor, they will make corrections accordingly. If the government institution does not agree to change the information on file, the institution must make a note of the request for correction and attach it to the record.
The Importance of An ATIP Request In Tax
The importance of an ATIP request for tax matters is two-fold. First, an ATIP request guarantees that a taxpayer has his or her tax-related records that have been in the possession of the Canada Revenue Agency and/or the Department of Justice. The federal government institutions are not required to share information in their possession unless the taxpayer specifically request release of such information. For example, to conclude a tax audit, the CRA often issues an audit proposal letter, outlining the decisions and the reasons for such decisions. However, the tax audit proposal letter generally does not explain in detail what documents or inferences the CRA tax auditor relied upon to come to certain conclusions. When an ATIP request is filed regarding any notes or information relevant to the audit, the taxpayer is then granted access to the supplementary information, which potentially provides the taxpayer a better fighting chance to dispute the CRA’s audit decision.
Secondly, if the taxpayer does not possess a full set of records, the ATIP request helps the taxpayer and his or her representatives to gain better understanding of the relevant matters. The CRA can take years to process a claim or to reassess a return. By the time the CRA issues a decision or a tax reassessment, many years could have passed, and the relevant records may no longer in the taxpayer’s possession. As the taxpayer bears the burden of proof and the CRA can draw inference from the lack of evidence, any records will be better than having no records at all.
An ATIP request can be a double-edged sword despite its importance to resolve tax matters. A request to obtain records can prompt the Canada Revenue Agency to question or to start investigating a taxpayer. For instance, if a taxpayer intends to submit a voluntary-disclosure application under the Voluntary Disclosure Program, it may not be wise to alert the CRA by submitting an ATIP request. It is highly recommended that a taxpayer should consult with one of our experienced Canadian tax lawyers before submitting an ATIP request if the taxpayer intends to file a voluntary-disclosure application.
Pro Tax Tips – Why Is An ATIP Request Important For Tax Disputes?
Having as much information as possible should be the top priority when preparing for a tax dispute. When our lawyers prepare to dispute a CRA’s decision on our clients’ behalf, with the exception of certain scenarios, the first step is generally to submit an ATIP request. An ATIP request provide an opportunity to a taxpayer and his or her representatives to gain a full understanding of the tax matters and help to establish the best strategies going forward.
However, an ATIP request may not be necessary if the taxpayer has all relevant information. Another example of exception will include cases where taxpayer intend to file a voluntary-disclosure application for the tax matters that the CRA has not noticed or acted on. In that case, it may be wise not to submit an ATIP request before the application gets filed. You can contact our expert Canadian tax lawyers for more information if you need assistance with tax disputes or an ATIP request.
How Can I Submit An ATIP Request?
You can submit an ATIP request by mail or online. The most convenient and likely the fastest way to make such a request is to use the ATIP online request service. A mailed ATIP request will likely take longer to be processed. However, once a request has been received and processed, the same deadline of 30 days applies unless the government institution has legitimate reasons to request an extension.
Can I Obtain All Of My Personal Information In The Possession The Government Via An ATIP Request?
The Access to Information Act and the Privacy Act only allow to release information controlled by federal government institutions. As a result, an ATIP request will not help you to obtain information exclusively in the control of a provincial or municipal government. You may be able to request information controlled by a specific institution by contacting them directly.
When Can I Receive The Requested ATIP Information?
An ATIP request must be responded to within 30 calendar days once it is received, unless an extension of time is requested. If the deadline falls on a Saturday, Sunday, or a public holiday, then the deadline is automatically extended to the next business day. At times, the ATIP request may take longer to complete if a long or complex search is needed to locate the information or if external consultations are required. An extension will be provided if more time is needed and the requestor must be informed of the extension of time within the 30-day period.
This article provides information of a general nature only. It is only current at the posting date. It is not updated, and it may no longer be current. It does not provide legal advice nor can it or should it be relied upon. All tax situations are specific to their facts and will differ from the situations in the articles. If you have specific legal questions, you should consult a Canadian tax lawyer.