Access to Information

Code on Access to Information

The Code on Access to Information provides a formal framework for access to information held by government departments. It defines the scope of information that will be provided, sets out how the information will be made available either routinely or in response to request, lays down procedures governing its release, as well as procedures for review or complaint.

Information to be published or made available routinely

1.4 Each year departments will publish –

details of their organisation

information on the services they provide

their performance pledges and the extent to which they have been met.

They will also publish, or make available for inspection at appropriate locations –

a list of their records by category

a list of information either published or otherwise made available, whether free or on payment

the procedures and any charges for access to information not routinely published.

Information to be provided on request

1.6 Each department will also, on request, provide additional information relating to its policies, services, decisions and other matters falling within its area of responsibility, except that requests for information in the areas listed in Part 2 may be refused.

Information which may be refused

Defence and security

Nationality, immigration and consular matters

External affairs Nationality, immigration and consular matters

Law enforcement, legal proceedings and public safety

Damage to the environment

Management of the economy

Management and operation of the public service

Internal discussion and advice

Public employment and public appointments Improper gain or advantage

Research, statistics and analysis

Third party information

Privacy of the individual

Business affairs

Premature requests

Legal restrictions

Inland Revenue Ordinance (Cap 112)

Among government departments that have released data, the Inland Revenue Department has provided the most incomplete report. Of 13 requests issued by Inland Revenue to ISPs, the department has provided information on only one. In the other 12 cases, the department failed to provide details such as the names of the ISPs involved, the dates of the requests, and whether the ISP acceded to the requests.

The Inland Revenue Department said the requests were made to enforce the Business Registration Ordinance and the Inland Revenue Ordinance, but it did not specify the relevant parts of the ordinances.

In its response to HK Transparency Report’s enquiry, IRD said that detailed information “cannot be provided due to the secrecy provisions under the Business Registration Ordinance and Inland Revenue Ordinance.”

The full ordinance, including the table of contents and a PDF of the complete Ordinance can be found on the Government’s website.

Business Registration Ordinance (Cap 310)

The Business Registration Ordinance contains strict guidelines in Section 4 that guarantee secrecy, and this is often cited as a reason why certain information cannot be given to the public.

Section 4 Official secrecy

(1) Except in the performance of the functions referred to in subsection (1A), an officer of the Inland Revenue Department, or of the Companies Registry— (a) must preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any person that may come to the officer’s notice in the performance of any function under this Ordinance; (b) must not communicate any such matter to any person other than— (i) the person to whom such matter relates; (ii) the executor of the person referred to in subparagraph (i); or (iii) the authorized representative of the person referred to in subparagraph (i) or the executor; and (c) must not allow any person to have access to any record relating to any such matter in the possession, custody or control of the Commissioner or the Registrar. (Replaced 13 of 2010 s. 4)

(1A) The functions are— (a) in relation to an officer of the Inland Revenue Department, functions under the Inland Revenue Ordinance (Cap 112) or under this Ordinance; and (b) in relation to an officer of the Companies Registry, functions under this Ordinance. (Added 13 of 2010 s. 4)

(2) An officer of the Inland Revenue Department, or of the Companies Registry, must, before acting under this Ordinance, take and subscribe before a commissioner for oaths an oath or affirmation of secrecy in the prescribed form. (Amended 47 of 1997 s. 10; 13 of 2010 s. 4)

(3) Except as may be necessary for the purpose referred to in subsection (3A), no officer of the Inland Revenue Department, or of the Companies Registry, may be required— (a) to divulge or communicate to any court any matter or thing coming to the officer’s notice in the performance of any function under this Ordinance; or (b) to produce in any court any document pertaining to such matter or thing other than a document required to be kept by the Commissioner under this Ordinance. (Replaced 13 of 2010 s. 4)

(3A) The purpose is— (a) in relation to an officer of the Inland Revenue Department, to carry into effect the provisions of the Inland Revenue Ordinance (Cap 112) or of this Ordinance; and (b) in relation to an officer of the Companies Registry, to carry into effect the provisions of this Ordinance. (Added 13 of 2010 s. 4)

(3B) In relation to an officer of the Companies Registry, subsections (1) and (3) do not apply to any particulars that are provided in an incorporation application or company registration application. (Added 13 of 2010 s. 4)

(4) Information given to the Commissioner under section 3(4) or 8(4) shall not be receivable in evidence against the person giving such information in any criminal proceeding save in a prosecution for an offence under section 15(1)(i).

(5) Notwithstanding the provisions of this section information received by officers of the Inland Revenue Department, or of the Companies Registry, for the purposes of this Ordinance may, together with copies of returns, accounts or other documents used for such purposes be communicated to the Commissioner of Rating and Valuation, to the Collector of Stamp Revenue or to the Estate Duty Commissioner. (Amended 13 of 2010 s. 4)

(6) Notwithstanding anything contained in this section, the Commissioner may permit the Director of Audit or any officer of the Audit Commission duly authorized by the Director of Audit in that behalf to have such access to any records or documents as may be necessary for the performance of his official duties. The Director of Audit or any officer so authorized shall be deemed to be an officer of the Inland Revenue Department for the purpose of subsection (2). (Amended 13 of 2010 s. 4)

(7) Notwithstanding anything contained in this section, the Commissioner may provide an index in such form and containing such particulars of businesses as registered under this Ordinance as he sees fit for the purpose of identifying such businesses. (Added 3 of 1999 s. 4)

The full ordinance, including the table of contents and a PDF of the complete Ordinance can be found on the Government’s website.